tag:blogger.com,1999:blog-61983382675292486872024-03-05T06:48:19.225+00:00THE LEGALESE SITEby BurayBvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comBlogger109125tag:blogger.com,1999:blog-6198338267529248687.post-21195347559402605752016-08-16T07:01:00.000+01:002019-03-26T06:19:11.670+00:00Ancient Law<br />
<br />
<br />
<br />
<br />
<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-70454757957384716512016-08-11T19:48:00.000+01:002019-03-26T06:19:13.153+00:00Free English Translation of Swiss Federal Court Decision on Fenerbahce Match-FixingFederal Court Tribunal federal Tribunale federale Tribunal federal<br />
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{T} 0/2<br />
4A_324 / 2014<br />
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Judgment of 16 October 2014 First Civil Law Division<br />
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occupation<br />
Federal Judge Klett, president, Federal Judge Kolly, Federal judges hollow, Kiss, Niquille Court: Leemann.<br />
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Parties<br />
Fenerbahge Spor Kulübü,<br />
Represented by<br />
Dr. Bernhard Berger and Dr. Andreas Güngerich,<br />
complainant,<br />
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against<br />
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Union des Associations Europeennes de Football (UEFA)<br />
represented by Dr. Jean-Marc Reymond and lawyer Delphine Rochat, Respondent.<br />
object<br />
International Arbitration,<br />
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Complaint against the arbitral award of the Court of Arbitration for Sport (CAS) on 11 April, 2014.<br />
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Facts:<br />
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A.<br />
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A.a. Fenerbahce Spor Kulübü (complainant) is a professional football club based in Istanbul, Turkey. He is a member of the Turkish Football Federation (TFF).<br />
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The Union des Associations Europeennes de Football (UEFA, Respondent) with headquarters in Nyon is the European Football Association, which also includes the Turkish Football Federation. It organizes, inter alia, the UEFA Champions League.<br />
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From. On 21 and 26 February, on 6, 7 and 20 March and 9 April 2011 several football matches were played under the Turkish "Süper Lig" in which persons in the vicinity of Fenerbahce Spor Kulübü bribes for Match loss allegedly paid.<br />
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On April 14, 2011 entered a new Turkish law (no. 6222) entered into force which provides for a special offense for match-fixing.<br />
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On 17 and 22 April and 1 May 2011 more football games from the "Süper Lig" took place, in which people are paid in the context of Fenerbahce Spor Kulübü money to influence games.<br />
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On May 5, 2011 gave Fenerbahce Spor Kulübü UEFA the signed form "UEFA Club Competitions 2011/2012 Admissions Criteria Form" A, with the Football Club confirmed since April 27, 2007 to have been involved in match-fixing, directly or indirectly.<br />
On May 8, 15 and 22, 2011 more Soccer Games of the Turkish Süper Lig were held to have been where paid by individuals with ties to Fenerbahce Spor Kulübü bribes to the opposing team for the game loss.<br />
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On May 22, 2011 Fenerbahce Spor Kulübü won the championship in the "Süper Lig" and thus qualified simultaneously for the group matches of UEFA Champions League game of the 2011/2012 season.<br />
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A.c. On 3 July 2011, the Turkish police arrested 61 people as part of a wide-scale criminal investigation concerning match fixing in Turkish football. The suspected match fixing among others, the president and vice president, two members, the coach and the financial director of Fenerbahce Spor Kulübü, this in connection with various soccer games, the game 2010/2011 season.<br />
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On 11 July 2011 the TFF Executive Committee urged the Ethics Commission to launch an investigation into match-fixing in Turkish football.<br />
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On 20 July 2011, the Turkish prosecutor provided the TFF Ethics Commission with information and evidence related to the criminal proceedings initiated.<br />
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A.d. On 24 August 2011, the TFF Executive Committee UEFA about his decision, the football club Fenerbahce Spor Kulübü informed not to pit in the Champions League this season.<br />
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On 25 August 2011, the TFF Arbitration Board had a Fenerbahce Spor Kulübü against<br />
Decision from the TFF Executive Committee imposed vocation.<br />
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On appointment of Fenerbahce Spor Kulübü against the decision of the TFF Arbitration Board from August 25, 2011 through the Court of Arbitration for Sport (CAS) dismissed the applications to grant interim relief to decide from 9 September and 3 November 2011.<br />
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On 2 December 2011, the Turkish prosecutor brought charges against several people, including officials from Fenerbahce Spor Kulübü.<br />
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On 3 January 2012, the TFF Disciplinary Committee against Fenerbahce Spor Kulübü and other Turkish football clubs as well as numerous individuals initiated disciplinary proceedings because of match-fixing.<br />
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25 April 2012 Fenerbahce Spor Kulübü withdrew his appeal to the TAS, which the decision of the Turkish Association, Fenerbahce Spor Kulübü not to let the game 2011/2012 season competing in the Champions League, became final.<br />
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A.e. On 26 April 2012, the TFF Ethics Commission adopted a Report into allegations of manipulation of certain football matches, including those involving Fenerbahce Spor Kulübü was involved.<br />
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In its decision of 6 May 2012, the TFF Disciplinary Commission imposed a board member of Fenerbahce Spor Kulübü a three-year prohibition on pursuing a one-year ban, football-related activities against the vice president and the coach.<br />
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B.A. On June 4, 2012, UEFA received the report of the TFF Ethics Committee of 26 April 2012 Design.<br />
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By letter dated 7 June 2012, the UEFA General Secretary urged the chairman of the Control and Disciplinary Committee of UEFA on, disciplinary proceedings against Fenerbahce Spor<br />
Kulübü initiate.<br />
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On 2 July 2012, the High Criminal Court decided in Istanbul that of under the leadership<br />
B., the president of Fenerbahce Spor Kulübü, a criminal organization formed<br />
was and that officials from Fenerbahce Spor Kulübü in 13 games of the season would 2010/2011 involved in match-fixing. Of the 93 defendants 48 were convicted, among them<br />
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- B., the president of Fenerbahce Spor Kulübü (two and a half years imprisonment for<br />
Forming a criminal organization, three years and nine months and TRY 1'312'500 .-- for match-fixing);<br />
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- C., vice president of Fenerbahce Spor Kulübü (one year and three months imprisonment<br />
for membership in a criminal organization; one years, 10 months and 14 days because of match-fixing);<br />
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- D., a board member of Fenerbahce Spor Kulübü (one year and six months<br />
Imprisonment for membership of a criminal organization; a year 25 [sic] months and 15 days as well as TRY 900,000 .-- for match-fixing);<br />
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- E., board member of Fenerbahce Spor Kulübü (one year and six months<br />
Imprisonment for membership of a criminal organization; one year, one month and 15 days, and TRY 135,000 .-- for match-fixing);<br />
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- F., manager of Fenerbahce Spor Kulübü (one year and three months imprisonment for<br />
Membership in a criminal organization; 11 months, 7 days and TRY 15'626 .-- for match-fixing);<br />
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- G., finance director of Fenerbahce Spor Kulübü (one year and three months imprisonment<br />
for membership in a criminal organization; one year and three months, or TRY 49'980.-<br />
- Buses for match-fixing).<br />
On 31 May 2013, the UEFA disciplinary inspector submitted his report on the existing disciplinary procedures. On June 20, 2013 Fenerbahce Spor Kulübü submitted observations to.<br />
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In its decision of 22 June 2013, the Control and Disciplinary Committee of UEFA Fenerbahce Spor Kulübü precluded from participating in the next three UEFA club competitions for which the Football Club would qualify, the third year of the ban was suspended.<br />
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B.b. In its decision of 10 July 2013, the UEFA Appeals Chamber overturned the decision of the Control and Disciplinary Committee of 22 June 2013 appointment of Fenerbahce Spor Kulübü back partially and restricted the lock on the next two UEFA club competitions a.<br />
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B.C. By submission of July 16, 2013 Fenerbahce Spor Kulübü challenged the decision of the UEFA Appeals Chamber on 10 July 2013 to the CAS and requested suspensive effect. UEFA did not oppose the granting of the suspensive effect.<br />
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On July 18, 2013 Fenerbahce Spor Kulübü informed the CAS, which, inter alia, that the parties agreed on the timing procedure.<br />
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Also on July 18, 2013 confirmed the TAS in view of the agreement reached between the parties, the suspensive effect. Moreover, it took from the agreement between the parties on an accelerated procedure note that the grounds for appeal to 26 July 2013 and the appeal response to August 9, 2013 submitted, held the oral main negotiation between 21st and 23 August 2013, and a decision to 28th August 2013 is to be like.<br />
On July 26, 2013 Fenerbahce Spor Kulübü filed the grounds for appeal, essentially with the application, the penalty imposed by the UEFA Appeals Chamber in its decision of July 10, 2013 barrier should be set aside; eventualiter was the decision set aside on 10 July 2013, dismissed the case to the UEFA Appeals Chamber.<br />
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On 9 August 2013, UEFA submitted its appeal response, in which it requested that the appeal be dismissed and to confirm the decision of the UEFA Appeals Chamber.<br />
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On 21 and 22 August 2013, the oral trial was held in Lausanne. A total of 20 designated by the parties were interviewed; on the survey of 13 other witnesses refrained Fenerbahce Spor Kulübü during the trial.<br />
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B.d. In an award dated 28 August 2013 (with reasons delivered on 11 April 2014) had the TAS the appeal, upheld the contested decision of the UEFA Appeals Chamber on 10 July, 2013.<br />
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C.<br />
With Civil law appeal Fenerbahce Spor Kulübü submits that the Federal Tribunal should the arbitral award of the CAS of 28 August 2013 annulled.<br />
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The respondent moved to dismiss the complaint as is capable of appeal. The TAS moved to dismiss the complaint in its consultation.<br />
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The complainant has the Federal Court a replica, the Respondent filed on August 5, 2014 August 26, 2014 rejoinder.<br />
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By order of 22 July 2014, the Federal Court dismissed the petition of the complainant to grant suspensive effect.<br />
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By order of 1 September 2014, dismissed the application for reconsideration concerning the non-members suspensive effect and confirmed the disposal of 22 July, 2014.<br />
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Considerations:<br />
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1.<br />
After<br />
Art. 54 para. 1 BGG<br />
issues its decision of the Federal Court in an official language, usually in that the decision under appeal. Was this edited in another language, the Federal Tribunal uses the official language chosen by the parties. The decision under appeal is in English. Since this is not an official language and the Parties used the Federal Court of the German language, the decision of the Federal Court was made in German.<br />
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. 2<br />
190-192 PILA (SR 291) (77 1 Art. Para. Letter a BGG) In the field of international arbitration is the complaint in civil matters under the requirements of Art. Allowed.<br />
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2.1. The seat of the arbitral tribunal is in Lausanne. The complainant in the reference point located outside Switzerland (Art. 176 para. 1 IPRG<br />
). Since the parties have expressly excluded the application of chapter 12 PILA, the provisions of this chapter be applicable (Art. 176 para. 2 IPRG).<br />
2.2. Permitted Only those grievances, which in Art. 190 para. 2 IPRG<br />
exhaustively enumerated are (BGE 134 III 186 E. 5 p 187; 128 III 50 E. 1a p.53; 127 III 279 E. 1a S. 282). Under Art. 77 para. 3 BGG<br />
the Federal Tribunal reviews only the grievances which are brought forward and reasoned in the appeal; this corresponds to in Art. 106 Para. 2 BGG<br />
for the violation of fundamental rights and provided by cantonal and intercantonal law (BGE 134 III 186 E. 5 p 187 with references). Appellatorische criticism is inadmissible (BGE 134 III 565 E. 3.1 p 567; 119 II 380 E. 3b S. 382).<br />
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2.3. The Federal Tribunal bases its decision on the facts, which the Tribunal has determined (Art. 105 para. 1 BGG<br />
). These include the findings about the life facts of the dispute underlying as well as those regarding the expiry of lower-instance procedure, so the findings about the process the facts, and the name the parties' claims, their factual allegations, legal analyzes, process returns and discovered evidence, the contents of a testimony, an expert or the findings on the occasion of any inspection include (BGE 140 III 16 E. 1.3.1 with references).<br />
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The Federal Court, the factual findings of the arbitral tribunal not rectify or supplement, even if it is obviously untrue or on an infringement within the meaning of Art. 95 BGG<br />
based (see. Art. 77 para. 2 BGG, of the application of Art. 97 BGG<br />
as<br />
Art. 105 Para. 2 BGG<br />
excludes). However, the Federal Tribunal may review the factual findings of the arbitral award, when compared to such factual findings admissible grievances within the meaning of Art. 190 para. 2 IPRG<br />
be or exceptionally considered Noven (BGE 138 III 29 E. 2.2.1 S. 34; 134 III 565 E. 3.1 p 567; 133 III 139 at 5 p 141; with references). In order to claim on an exception to the binding of the Federal Court to the factual findings of the arbitral tribunal and to have the facts corrected or supplemented, shall set forth with reference to the record that the corresponding factual allegations have already been set up process compliant in arbitration proceedings (see. BGE 115 II 484 E. 2a S. 486; 111 II 471E 1c S. 473;. with references).<br />
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2.4. The complainant fails to recognize the loyalty of the Federal Court to the findings in the contested decision to process facts when he preceded his legal arguments, a detailed exposition of the facts, in which he describes the background to the dispute and the proceedings from its own perspective and thereby partially from the factual findings of the arbitral tribunal deviating or these expanded without making substantiated exceptions to the binding character facts. The relevant passages have to be ignored.<br />
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Irrelevant are the new facts submitted (Art. 99 para. 1 BGG<br />
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2.5. The Board is fully justified within the period for appeal submitted (Art. 42 para. 1 BGG<br />
). If there is a second correspondence, the complaining party the Replica (see. BGE 132 I 42 E. 3.3.4) must not use it to supplement its complaint or to improve. The replica is to be used only to statements, including the statements in the consultation of other parties give rise (see, BGE 135 I 19 E. 2.2).<br />
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Unless the complainant goes in his reply about his remarks can not be considered.<br />
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The complainant alleges that the CAS disregarded the principle of equal treatment of the parties injured (<br />
Art. 190 para. 2 lit. d PILA).<br />
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3.1. He argues that the CAS was considered primarily on quickness in judging the appeal despite the extensive process substance and decided only just six weeks after receipt of the appeal and within less than six days after the completion of a multi-day trial in an accelerated procedure instead the dispute to the UEFA rejected. So that the CAS would have the unequal treatment of the parties that had their origin in the procedure before the departments of UEFA continued.<br />
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UEFA had in summer 2011 almost two years taken time for them to have the complainant finally delivered its report on the investigations carried out on 10 June 2013, and opened a disciplinary procedure. Then it was "blow by blow" gone until the decision had been like. Before the UEFA Control and Disciplinary Committee he had been admitted for an opinion, although the authoritative report as well as the other documents submitted were very extensive just 10 days. The subsequent proceedings before the UEFA Appeals Chamber was nothing but a farce, it had nevertheless taken from the entrance of the appeal to the decision of 10 July 2013 just five days, the Appeals Chamber - despite his protests - even substantial new evidence of the Respondent have approved.<br />
A comprehensive review and effective judicial protection, the complainant had not received even before the TAS; the extensive dispute was dealt with and dismissed after receiving his appointment in just six weeks the hearing was limited to two days with correspondingly few opportunities for the party and witness interviews.<br />
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The expedited procedure before the CAS had agreed voluntarily not the complainant. Basis of the accelerated procedure was the registration form (Admission form) of UEFA have been the must sign a football club, if he wished to take part in UEFA competitions. He would have an accelerated procedure before the CAS not agreed, if there had been an opportunity to participate without signing the appropriate form to the UEFA competitions; the relevant statement could not be invoked against him thus. The difference in treatment was carried out before the association's internal bodies have continued in arbitration before the CAS. The respondent had time trying to force a clarification of the question before the draw to see who could take part in the Champions League season 2013/2014. The complainant had ultimately had no choice but to undergo this dictates the respondent in order to preserve its ability to still be able to participate in this contest. At the expedited procedure before the association's internal organs and the CAS absolutely no serious interest have existed; the Respondent would perform an orderly appeal procedure readily and also can agree to a proper conduct of the arbitration before the CAS. With its unilateral and unnecessary insistence on the implementation of an urgent procedure before the CAS, the respondent has intentionally taken into account that the unequal treatment of the parties and therefore impermissible curtailment of procedural rights before the CAS would have continued. The TAS has the right to equal treatment can only preserve by the dispute - would have remitted to the Respondent - as requested.<br />
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3.2.1.<br />
Art. 190 para. 2 lit. d PILA<br />
makes the challenge alone because of the mandatory procedural rules pursuant to Art. 182 para. 3 PILA<br />
to. Thereafter, the arbitral tribunal must especially respect the claim of the parties to be heard. This corresponds - with the exception of the right to justification - the in article 29, paragraph 2 BV..<br />
legal constitutional law (BGE 130 III 35 E. 5 p 37 f .; 128 III 234 E. 4b S. 243; 127 III 576 E. 2c S. 578 f.). The law derives in particular the right of parties from to comment on all the judgment essential facts to defend their legal position, to prove their decisive essential factual allegations with suitable and timely manner and form correctly offered funds to participate in the negotiations and the to inspect files (BGE 130 III 35 E. 5 p 38; 127 III 576 E. 2c S. 578 f .; with references). The principle of equal treatment also requires that the parties are treated equally throughout the arbitral proceedings (see. BGE 133 III 139 E. 6.1 p 143).<br />
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3.2.2. The party, which is characterized by a denial of due process or another according to Art. 190 para. 2 IPRG<br />
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relevant procedural violation for holding disadvantaged forfeited their complaints, if they are not in time brings forward these through arbitration and not every reasonable effort is taking to the defect - if possible - to eliminate (BGE 130 III 66 E. 4.3 p 75; 126 III 249 E . 3c S. 253 f .; 119 II 386 E. 1a S. 388; with references). The federal judicial review of the award process on infringements is thus far a subsidiary, as the parties have to be reported corresponding defects initially the arbitral tribunal so that they can be resolved before the end of arbitration. It contradicts good faith to rebuke a procedural violation only in the context of an appeal, although in the arbitration, the possibility would have been to give the arbitral tribunal an opportunity to remedy the alleged defect (BGE 119 II 386 E. 1a S. 388). Faithful offense and abuse of rights is especially the party that holds Rügegründe speak in reserve to this nachzuschieben with an unfavorable course of the process and a foreseeable loss process (see BGE 136 III 605 E. 3.2.2 S. 609;. 129 III 445 E. 3.1 p 449; 126 III 249 S. E. 3c 254).<br />
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3.3.<br />
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3.3.1. Unless the complainant establishes a procedural violation federal court order, it was not sufficient given the possibility for party and witness interviews during the two-day trial, he can not be heard. It is not clear how he would put forward this alleged deficiency to arbitration; the contrary is clear from the findings of fact in the contested decision that the applicant, the number of called witnesses belittled by itself of first 53 two days before the hearing on 35 and a day earlier on 32, said he was still at the hearing to the hearing refrained from 13 other witnesses called. The complaint is forfeit.<br />
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Even with his subsequent shows not on the complainant that he had been reprimanded unequal treatment by the arbitral tribunal during the arbitration proceedings. Contrary to his argument before the Federal Court he gave acting either in his grounds for appeal nor at the hearing to correct the alleged defect in the arbitration. Rather, he referred in his grounds of appeal only to various shortcomings in the association's internal procedure and the TAS requested that the dispute should be rejected to the UEFA Appeals Chamber to new assessment, if the TAS its principal claim, annul the penalties imposed, should not be followed. Shortly before the end of the hearing, the complainant stated that it did not support the accelerated procedure voluntarily, so the procedure should be rejected on the association's internal organs of UEFA. That he, the CAS more time for further comments or inquiry or a repeat or supplement certain steps requested, let alone a difference in treatment would reprimanded to arbitration, the applicant does not point to.<br />
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He has not made every effort to work towards a remedy the alleged defect in the current arbitration procedure. He forfeited for the right, in the appeal proceedings before the Federal Court on alleged unequal treatment within the meaning of<br />
Art. 190 para. 2 lit. d PILA<br />
to invoke. In this plea must also not enter.<br />
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3.3.2. Anyway, does not point to the complainant how the TAS had him treated differently in the arbitration proceedings (see. BGE 133 III 139 E. 6.1 p 143). Rather, he also criticized the Federal Court mainly the combined internal procedures or the conduct of the Respondent and derives from the facts alleged by him involuntariness of accelerated procedure not from around that the CAS would have to carry out a proper procedure, but sees a difference in treatment rather in the dismissal of his appeal requests by the arbitral tribunal. He's really-is not raised, the other party was, procedurally granted under the arbitration, in which the dispute can be reviewed in fact and in law something that was denied, but criticized in an impermissible manner the content of the contested award ,<br />
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. 4<br />
The complainant alleges that the arbitral tribunal, by surprising application of the law his right to be heard (Art. 190 par. 2 lit. d PILA) hurt to have.<br />
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4.1. By the Federal Court case law, there is no constitutional claim of the parties to be especially consulted on the legal assessment of the system established by them in the process facts. Nor follows from the right to be heard, that the parties would advance to indicate the essential facts for the decision. An exception exists especially if a court intends to justify its decision by an legal base, to which the parties have not appointed and its relevance not reasonably expect had (BGE 130 III 35E 5 p. 39; 126 I 19 E . 2c / aa 22 S. and E. d / bb p 24; 124 I 49 E. 3c p.52).<br />
4.2. The author submits that UEFA Appeals Chamber had convicted him of eight games and manipulated for false statements in the registration form to (unconditional) two-year exclusion from European club competitions. The CAS would have a conviction for false statements repealed the form used and also found that the applicant had merely tried to manipulate four games. This has however led to no criminal reduction; Instead, the CAS had confirmed the two-year sanction. The complainant referred to the result as a "eye-catching industrial accident" for sentencing at which it came to the sentencing provisions of the World Anti-Doping Code (WADA Code) due to a never thematized in previous processes analogy. The CAS would have but the parties were no opportunity to comment on these "completely surprising analogy".<br />
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4.3. Contrary to what the applicant appears to accept that the CAS has not left the sentencing criteria of Article 17 of the UEFA disciplinary regulations (2008 edition) about the benefit of those of the WADA code out of consideration, but has certainly supported for sentencing on that provision. In addition, the arbitration is explicitly addressed as to why it did not reduce the penalty imposed, although it considered "only" in four cases as created in contrast to the association's internal instances of match-fixing. In particular, the CAS held having regard to Article 17 of the UEFA disciplinary regulations, a two-year suspension in the specific case of clearly justified.<br />
The tribunal considered, taking into account its own case, after for match-fixing penalties between one and eight years were imposed, given the particular severity of the case compared with previously assessed match fixing even a penalty at the upper end of this range is appropriate, but it does Reserve left with Note on the principle ultra petita - the respondent had waived an appeal - in the two-year ban. The notice of the TAS that in doping cases comparable penalties are pronounced, which generally offers a two-year ban would impose that would be higher for very serious offenses and to put deep in extenuating circumstances, thus came - contrary to the view in the appeal view - not " the crucial importance for the determination of penalties "to. The CAS was not required in these circumstances, the complainant specifically give an opportunity to comment on the sentencing provisions of the WADA Code.<br />
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A hearing to claim infringing surprising application of the law is absent.<br />
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. 5<br />
The complainant alleges that the TAS before, for not having examined several of his decisive significant argument in violation of the right to be heard.<br />
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5.1. The right to be heard in an adversarial procedure in accordance<br />
Art. 182 para. 3 and<br />
Art. 190 para. 2 lit. d PILA<br />
excludes settled case also claim to justification of an international arbitral award (BGE 134 III 186E. 6.1 with references). Nevertheless, this results in a minimum requirement of arbitrators to consider the key relevant issues, to deal with. This requirement violates the arbitral tribunal, if it disregarded leaves due to an oversight or a misunderstanding rather substantial allegations, arguments, evidence or proof of evidence of a party. This does not mean that the arbitral tribunal must explicitly deal with each individual arguments of the parties (BGE 133 III 235 E. 5.2 with references).<br />
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5.2.<br />
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5.2.1. The complainant alleges that the arbitral tribunal, first, it had left some of his arguments entirely out of account in assessing the competence of UEFA to impose sanctions for match-fixing. He had claimed that he did Article 2.06 of the Regulations of the UEFA Champions League (UCLR) not yet recognized as binding at the time of discharge of some of the controversial games. Given the arbitral tribunal shall have no more expressed as to its argument that the Court of TAS the disciplinary regulations of UEFA must be interpreted objectively by its wording and legislative context. Also on his argument that the interpretation of association rules-especially disciplinary regulations - should take place in doubt at the expense of the user, the CAS had received no word. Moreover, its arguments concerning the interpretation and meaning of the Circular submitted by the respondent at the hearing no. 24/2013 had been the UEFA unaudited and appreciated. If the arbitral tribunal his decisive substantial arguments for missing Criminal expertise of UEFA checked the complainant, it would have had to approve his appointment.<br />
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5.2.2. The arbitration leads to the issue of jurisdiction of UEFA to conduct disciplinary proceedings in the contested decision as one of the main issues to be assessed. It took the complainant's position to the effect this together, that the disputed allegations of match fixing relate to championship games of the 2010/2011 season, and thus did not fall within the disciplinary expertise of UEFA by the authoritative association rules.<br />
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The tribunal considered in consequence, the competence of the UEFA imposed for match-fixing detail. This clear instruction, among other points to the complainant's argument, according to which UEFA have lacked the necessary disciplinary expertise at the time of his alleged conduct after the then applicable Association rules; such was only introduced subsequently according to the complainant, which is why the responsibility for punishment carried neither Article 50 (3) of the UEFA Statutes nor Article 2.05 or 2:06 UCLR or Article 5 of the Disciplinary Code'll support. The arbitral tribunal considered the issue of the legal basis for sanctioning the issue of match-fixing by UEFA detail by interpreted the above provisions, while also assessed their applicability in terms of time. It manifested itself inter alia on the interpretation and meaning of the Circular no. 24/2013.<br />
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The arbitral tribunal may, under these circumstances not be criticized, it breached its minimum duty to examine the key relevant issues and treat (see. BGE 133 III 235 E. 5.2 p 248 with references). Given the detailed reasoning in the contested decision it can be assumed that it has led the complainant into the Arguments field at least by analogy discarded. The arbitral tribunal has the right to be heard by the complainant not infringed by failing 24/2013 expressly dealt with each of its arguments concerning the applicability of Article 2.06 UCLR, to supposedly authoritative interpretation method in Association regulations or the interpretation and meaning of Circular No..<br />
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5.3. The complainant alleges further that he had raised during the arbitration that pronounced by the respondent sanction applicable in criminal law principle nulla poena sine lege contrary. However, the arbitral tribunal set up in its decision with this objection in any way apart. Individual titles ( "[...] and were the sanctions imposed in accor dance with the legality principle?" Or "Is there a Sufficient legal basis for the disciplinary measure?") Led to the conclusion to be sure that this issue should be dealt with content , which is not incorrect.<br />
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The raised in the complaint - but not further substantiated - allegation that the mentioned headlines turned out to be "pure misnomer", is incomprehensible. The complainant presents itself not in dispute that the arbitration be argument that relied on for the penalty imposed Association provisions, the requirements of the principle of legality (nulla poena sine lege scripta et certa) expressly lists in the decision notice. It directs his remarks to the principle of legality, under the heading "Is there a Sufficient legal basis for the disciplinary measure?" so a, according to Swiss law and established case law of TAS presupposes the imposition of a disciplinary measure a sufficiently clear and unambiguous legal basis ( "a clear and unambigous legal basis for the sanction"). Legal certainty requires that the applicable provision - in this case, Article 2.06 UCLR - is sufficiently determined what considered the arbitral tribunal in the sequence and -for match-fixing, but not -bejahte for the accusation of false statements in the registration form.<br />
A mistake or a misunderstanding, due to which the arbitral tribunal would have left a fairly substantial argument of the complainant disregarded, is not available in this context.<br />
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5.4. A hearing injury is not visible even in terms of the complainant's arguments for the design of the disciplinary measure. The tribunal has listed the corresponding argument in the contested decision expressly and the amount of the penalty scrutinized. By the complainant referred to the arbitration justification as "not understandable", it exerts only undue criticism of the contested decision, but not show a violation of the right to be heard.<br />
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. 6<br />
The complainant alleges that the TAS before a violation of public policy.<br />
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6.1. He argues that the contested award was contrary to the matter of public policy pursuant to Art. 190 para. 2 lit. e IRPG belonging ne bis in idem (prohibition of double jeopardy). It had been pronounced against him for the same offense two penalties. The TAS of the contested decision imposed or confirmed punishment is contrary to the aforementioned principle and is therefore incompatible with public policy.<br />
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6.2.<br />
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6.2.1. A violation of the procedural public policy front is a violation of fundamental and generally recognized principles of procedure, and failure to comply is the sense of justice in an intolerable contradiction, so that the decision as to the force in a constitutional state legal and value system utterly incompatible appears (BGE 140 III 278 E. 3.1; 136 III 345 E. 2.1 S. 347 f .; 132 III 389 E. 2.2.1 S. 392; 128 III 191 E. 4a p.194).<br />
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The arbitral tribunal violated the procedural public policy when the substantive legal force of a previous decision disregards when making its decision or if it is different in its final award of the view that it has expressed in a preliminary decision regarding a substantive preliminary (BGE 140 III 278 E. 3.1; 136 III 345 E. 2.1 p 348; with references).<br />
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The ne bis in idem principle also forms part of public policy within the meaning of Art. 190 para. 2 lit. e PILA<br />
, The Federal Court has, however, left open whether this penal principle in disciplinary law of sport to be considered equally (judgment 4A_386 / 2010 from January 3, 2011 E. 9.3.1). The question does not need to be deepened in the present case, the TAS went himself of its applicability and examined the compatibility of the sanctions with this principle in detail. Therefore, the Federal Tribunal is limited to a review of the actual application of the principle mentioned by the arbitral tribunal (cf.. Judgment 4A_386 / 2010, supra, E. 9.3.1 a.e.).<br />
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6.2.2. The complainant in arbitration infringement of the principle ne bis in idem is seen that he had been excluded from the Champions League the playing season 2011/2012 with decision of the Turkish Football Federation dated 24 August 2011; he can not therefore be ruled out a second time from the UEFA competitions.<br />
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The tribunal was considering the time decreed by the Turkish federation TFF exclusion for the 2011/2012 season conclude later banned for more Game seasons not under a disciplinary procedure. It relied on Article 50 (3) of the UEFA Statutes (2010 edition), and Article 2.05 and 2.06 UCLR (2011/2012), which are as follows:<br />
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Article 50 (3) of the UEFA Statutes (2010):<br />
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"The admission to a UEFA competition of a Member Association or club Directly or Indirectly Involved in any activity Aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures. "<br />
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Article 2.05 UCLR (2011/2012):<br />
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"If, on the basis of all the factual circumstances and information available to UEFA, UEFA Concludes to its comfortable satisfaction did a club has been Directly and / or Indirectly Involved, since the entry into force of Article 50 (3) of the UEFA Statutes , ie 27 April 2007, in any activity Aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare examined club ineligible to participate in the competition. search ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court. UEFA can refrain from declaring a club ineligible to participate in the competition if UEFA is comfortably satisfied dass die impact of a decision taken in connection with the same factual circumstances by a national or international sporting body, arbitral tribunal or state court has already had the effect to prevent did club from participating in a UEFA club competition. "<br />
Article 2.06 UCLR (2011/2012):<br />
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"In addition to the administrative measure of declaring a club ineligible, as provided for in paragraph 2.05 the UEFA organ for the Administration of Justice can, if the circumstances so justify, so take disciplinary measures in accor dance with the UEFA Disciplinary Regulations."<br />
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The tribunal considered that Article 50 (3) of the UEFA Statutes provides for a two-stage process in conjunction with Article 2.05 and 2.06 UCLR: In a first stage will having regard to Article 2.05 UCLR an administrative measure ( "administrative measure") in the form of a one-year exclusion pronounced by the European Club competition. In a second stage, a disciplinary measure would be imposed, which know no maximum time period, and in addition to the administrative measure ( "In addition to the administrative measure [...]") could be adopted. The two types of match suspensions were distinguish clearly by the regulatory purpose of the provisions mentioned by first with immediate effect an exclusion would be imposed by the competition before the UEFA check the allegations of misconduct in detail. UEFA have a legitimate interest to exclude a football club from the competition immediately, without first initiating a comprehensive disciplinary proceedings against him. The administrative measure, the TAS, therefore constitutes not definitive, but merely a preliminary minimum sanction which seeks to protect the integrity of the concrete competition.<br />
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6.2.3. Applying the principle of ne bis in idem requires inter alia that the court in the first process must have granted the opportunity to assess the facts in all factual regular points (BGE 135 IV 6 E. 3.3; 119 Ib 311 E. 3c with hints ). To what extent this is true, after it but only went in the first process of the Turkish Football Federation to an administrative measure to protect the integrity of the concrete competition in a preliminary process in a timely manner, and not to a comprehensive disciplinary procedures for final determination of allegations of misconduct, does not light a , As the Supreme Court has laid down in a decision in the field of Sport Arbitration, the application of the double jeopardy prohibition obliges it an identity of the legal interest protected; Moreover, it pointed out that such a prohibition does not preclude that the same behavior in addition to criminal and civil, administrative or disciplinary consequences draws (judgment 4A_386 / 2011 of 3 January 2011 E. 9.3.2).<br />
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On the fact that the different procedures referred to in Article 2.05 and 2.06 UCLR also tracks each different purpose and extent various legal interests are protected, the applicant does not address, however. He contents himself rather with the indication that the arbitral tribunal in both methods of sanctions ( "sanctions") talks, which he fails to indicate that it is the one-year exclusion decreed by Article 2.05 is a decision, the same object as the having subsequently having to Article 2.06 pronounced disciplinary measure. Given the described two-stage process, each with different regulatory purpose is also not clear to what extent the Turkish federation TFF had been granted the option in the first process, finally to assess the facts in all factual regular points.<br />
The TAS is no breach of the principle ne bis in idem reproach. The complaint of violation of public policy thus pushes into space.<br />
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. 7<br />
The complaint is unfounded and must be dismissed, can be extent that the matter. the Appellant must the outcome of the procedure costs and compensate the Respondent (Art. 66 para. 1 and Art. 68 para. 2 BGG<br />
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Therefore, the Federal Court:<br />
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1.<br />
The appeal is rejected to the extent capable of appeal.<br />
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. 2<br />
The judicial costs of CHF 30'000 .-- be borne by the Appellant.<br />
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. 3<br />
The complainant shall pay to the Respondent for the federal judicial proceedings Fr. 35'000 .--.<br />
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. 4<br />
This judgment shall be notified to the parties and the Court of Arbitration for Sport (CAS) in writing.<br />
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Lausanne, October 16, 2014<br />
<br />
On behalf of the First Civil Law Court of the Swiss Federal Court<br />
<br />
<br />
The President: Klett<br />
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<br />
The Clerk: Leemann<br />
<br />
<br />
<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-40037923534354381222016-07-10T05:15:00.000+01:002019-03-26T06:19:19.385+00:00Swiss Federal Tribunal Decision in German on Fenerbahce-UEFA Case Concerning The Match-Fixing Scandal<div style="text-align: justify;">Swiss Federal Tribunal Decision in German on Fenerbahce-UEFA Case Concerning The Match-Fixing Scandal</div><br />
Bundesgericht<br />
Tribunal federal<br />
Tribunale federale<br />
Tribunal federal<br />
<br />
{T 0/2}<br />
4A_324/2014<br />
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Urteil vom 16. Oktober 2014 I. zivilrechtliche Abteilung<br />
<br />
Besetzung<br />
Bundesrichterin Klett, Präsidentin, Bundesrichter Kolly, Bundesrichterinnen Hohl, Kiss, Niquille, Gerichtsschreiber Leemann.<br />
<br />
Verfahrensbeteiligte<br />
Fenerbahge Spor Kulübü,<br />
vertreten durch Rechtsanwälte<br />
Dr. Bernhard Berger und Dr. Andreas Güngerich,<br />
Beschwerdeführer,<br />
<br />
gegen<br />
<br />
Union des Associations Europeennes de Football (UEFA),<br />
vertreten durch Rechtsanwalt Dr. Jean-Marc Reymond und Rechtsanwältin Delphine Rochat, Beschwerdegegnerin.<br />
Gegenstand<br />
Internationales Schiedsgericht,<br />
<br />
Beschwerde gegen den Schiedsentscheid des Tribunal Arbitral du Sport (TAS) vom 11. April 2014.<br />
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Sachverhalt:<br />
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A.<br />
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A.a. Fenerbahce Spor Kulübü (Beschwerdeführer) ist ein professioneller Fussballclub mit Sitz in Istanbul, Türkei. Er ist Mitglied des türkischen Fussballverbands (TFF).<br />
<br />
Die Union des Associations Europeennes de Football (UEFA, Beschwerdegegnerin) mit Sitz in Nyon ist der europäische Fussballverband, dem auch der türkische Fussballverband angehört. Sie veranstaltet unter anderem die UEFA Champions League.<br />
<br />
A.b. Am 21. und 26. Februar, am 6., 7. und 20. März sowie am 9. April 2011 wurden im Rahmen der türkischen "Süper Lig" verschiedene Fussballspiele ausgetragen, bei denen von Personen im Umfeld von Fenerbahce Spor Kulübü Bestechungsgelder für den Matchverlust bezahlt worden sein sollen.<br />
<br />
Am 14. April 2011 trat ein neues türkisches Gesetz (Nr. 6222) in Kraft, das einen besonderen Straftatbestand für Spielmanipulationen vorsieht.<br />
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Am 17. und 22. April sowie am 1. Mai 2011 fanden weitere Fussballspiele der "Süper Lig" statt, bei denen Personen im Umfeld von Fenerbahce Spor Kulübü Geld bezahlt haben sollen, um die Spiele zu beeinflussen.<br />
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Am 5. Mai 2011 reichte Fenerbahce Spor Kulübü der UEFA das unterzeichnete Formular "UEFA Club Competitions 2011/2012 Admissions Criteria Form" ein, mit dem der Fussballclub bestätigte, seit 27. April 2007 weder direkt noch indirekt an Spielmanipulationen beteiligt gewesen zu sein.<br />
Am 8., 15. und 22. Mai 2011 fanden weitere Fussballspiele der türkischen Süper Lig statt, bei denen von Personen mit Beziehungen zu Fenerbahce Spor Kulübü Bestechungsgelder an die gegnerische Mannschaft für den Spielverlust bezahlt worden sein sollen.<br />
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Am 22. Mai 2011 gewann Fenerbahce Spor Kulübü die Meisterschaft in der "Süper Lig" und qualifizierte sich damit gleichzeitig für die Gruppenspiele der UEFA Champions League der Spielsaison 2011/2012.<br />
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A.c. Am 3. Juli 2011 verhaftete die türkische Polizei 61 Personen im Rahmen einer weit angelegten Strafuntersuchung betreffend Spielmanipulationen im türkischen Fussballsport. Der Spielmanipulation verdächtigt wurden unter anderem der Präsident und Vizepräsident, zwei Vorstandsmitglieder, der Trainer und der Finanzdirektor von Fenerbahce Spor Kulübü, dies im Zusammenhang mit verschiedenen Fussballspielen der Spielsaison 2010/2011.<br />
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Am 11. Juli 2011 forderte das TFF-Exekutivkomitee die Ethikkommission dazu auf, eine Untersuchung zu Spielmanipulationen im türkischen Fussballsport einzuleiten.<br />
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Am 20. Juli 2011 versorgte die türkische Staatsanwaltschaft die TFF-Ethikkommission mit Informationen und Beweismitteln im Zusammenhang mit dem eingeleiteten Strafverfahren.<br />
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A.d. Am 24. August 2011 informierte das TFF-Exekutivkomitee die UEFA über seinen Entscheid, den Fussballclub Fenerbahce Spor Kulübü diese Saison nicht in der Champions League antreten zu lassen.<br />
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Am 25. August 2011 wies die TFF-Schiedskommission eine von Fenerbahce Spor Kulübü gegen den<br />
Entscheid des TFF-Exekutivkomitees erhobene Berufung ab.<br />
<br />
Auf Berufung von Fenerbahce Spor Kulübü gegen den Entscheid der TFF-Schiedskommission vom 25. August 2011 hin wies das Tribunal Arbitral du Sport (TAS) die Anträge um Erlass vorsorglicher Massnahmen mit Entscheiden vom 9. September und 3. November 2011 ab.<br />
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Am 2. Dezember 2011 erhob der türkische Staatsanwalt Anklage gegen verschiedene Personen, unter ihnen Funktionäre von Fenerbahce Spor Kulübü.<br />
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Am 3. Januar 2012 leitete die TFF-Disziplinarkommission gegen Fenerbahce Spor Kulübü und weitere türkische Fussballclubs sowie zahlreiche natürliche Personen Disziplinarverfahren wegen Spielmanipulationen ein.<br />
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Am 25. April 2012 zog Fenerbahce Spor Kulübü seine Berufung an das TAS zurück, womit der Entscheid des türkischen Verbands, Fenerbahce Spor Kulübü für die Spielsaison 2011/2012 nicht in der Champions League antreten zu lassen, rechtskräftig wurde.<br />
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A.e. Am 26. April 2012 verabschiedete die TFF-Ethikkommission einen Untersuchungsbericht zu den Manipulationsvorwürfen bezüglich bestimmter Fussballspiele, unter anderem solchen, an denen Fenerbahce Spor Kulübü beteiligt war.<br />
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Mit Entscheid vom 6. Mai 2012 verhängte die TFF-Disziplinarkommission gegen ein Vorstandsmitglied von Fenerbahce Spor Kulübü ein dreijähriges Verbot, gegen den Vizepräsidenten und den Trainer ein einjähriges Verbot, fussballbezogene Aktivitäten auszuüben.<br />
<br />
B.<br />
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B.a. Am 4. Juni 2012 erhielt die UEFA den Bericht der TFF-Ethikkommission vom 26. April 2012.<br />
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Mit Schreiben vom 7. Juni 2012 forderte der Generalsekretär der UEFA den Vorsitzenden der Kontroll- und Disziplinarkommission der UEFA auf, ein Disziplinarverfahren gegen Fenerbahce Spor<br />
Kulübü einzuleiten.<br />
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Am 2. Juli 2012 entschied der High Criminal Court in Instanbul, dass unter der Führung von<br />
B. , dem Präsidenten von Fenerbahce Spor Kulübü, eine kriminelle Organisation gebildet<br />
worden sei und dass sich Funktionäre von Fenerbahce Spor Kulübü bei 13 Spielen der Saison 2010/2011 an Spielmanipulationen beteiligt hätten. Von den 93 Angeklagten wurden 48 verurteilt, unter ihnen<br />
<br />
- B. , der Präsident von Fenerbahce Spor Kulübü (zweieinhalb Jahre Freiheitsstrafe für die<br />
Bildung einer kriminellen Organisation, drei Jahre und neun Monate sowie TRY 1'312'500.-- für Spielmanipulationen);<br />
<br />
- C. , Vizepräsident von Fenerbahce Spor Kulübü (ein Jahr und drei Monate Freiheitsstrafe<br />
wegen Mitgliedschaft in einer kriminellen Organisation; ein Jahr, 10 Monate und 14 Tage wegen Spielmanipulationen);<br />
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- D. , Vorstandsmitglied von Fenerbahce Spor Kulübü (ein Jahr und sechs Monate<br />
Freiheitsstrafe wegen Mitgliedschaft in einer kriminellen Organisation; ein Jahr, 25 [sic] Monate und 15 Tage sowie TRY 900'000.-- wegen Spielmanipulationen);<br />
<br />
- E. , Vorstandsmitglied von Fenerbahce Spor Kulübü (ein Jahr und sechs Monate<br />
Freiheitsstrafe wegen Mitgliedschaft in einer kriminellen Organisation; ein Jahr, ein Monat und 15 Tage sowie TRY 135'000.-- wegen Spielmanipulationen);<br />
<br />
- F. , Trainer von Fenerbahce Spor Kulübü (ein Jahr und drei Monate Freiheitsstrafe wegen<br />
Mitgliedschaft in einer kriminellen Organisation; 11 Monate und 7 Tage sowie TRY 15'626.-- wegen Spielmanipulationen);<br />
<br />
- G. , Finanzdirektor von Fenerbahce Spor Kulübü (ein Jahr und drei Monate Freiheitsstrafe<br />
wegen Mitgliedschaft in einer kriminellen Organisation; ein Jahr und drei Monate sowie TRY 49'980.-<br />
- Busse wegen Spielmanipulationen).<br />
Am 31. Mai 2013 legte der UEFA-Disziplinarinspektor seinen Bericht über das bisherige Disziplinarverfahren vor. Am 20. Juni 2013 reichte Fenerbahce Spor Kulübü seine Stellungnahme dazu ein.<br />
<br />
Mit Entscheid vom 22. Juni 2013 schloss die Kontroll- und Disziplinarkommission der UEFA Fenerbahce Spor Kulübü von der Teilnahme an den nächsten drei UEFA-Clubwettbewerben aus, für die sich der Fussballclub qualifizieren würde, wobei das dritte Jahr der Sperre zur Bewährung ausgesetzt wurde.<br />
<br />
B.b. Mit Entscheid vom 10. Juli 2013 hob die UEFA-Berufungskammer den Entscheid der Kontroll-und Disziplinarkommission vom 22. Juni 2013 auf Berufung von Fenerbahce Spor Kulübü hin teilweise auf und schränkte die Sperre auf die nächsten zwei UEFA-Clubwettbewerbe ein.<br />
<br />
B.c. Mit Eingabe vom 16. Juli 2013 focht Fenerbahce Spor Kulübü den Entscheid der UEFA-Berufungskammer vom 10. Juli 2013 beim TAS an und beantragte die aufschiebende Wirkung. Die UEFA widersetzte sich der Gewährung der aufschiebenden Wirkung nicht.<br />
<br />
Am 18. Juli 2013 teilte Fenerbahce Spor Kulübü dem TAS unter anderem mit, dass sich die Parteien über den zeitlichen Verfahrensablauf geeinigt hätten.<br />
<br />
Ebenfalls am 18. Juli 2013 bestätigte das TAS angesichts der zwischen den Parteien getroffenen Einigung die aufschiebende Wirkung. Ausserdem nahm es von der Einigung der Parteien auf einen beschleunigten Verfahrensablauf Kenntnis, wonach die Berufungsbegründung bis 26. Juli 2013 und die Berufungsantwort bis 9. August 2013 eingereicht, die mündliche Hauptverhandlung zwischen 21. und 23. August 2013 abgehalten und ein Entscheid bis 28. August 2013 gefällt werden soll.<br />
Am 26. Juli 2013 reichte Fenerbahce Spor Kulübü die Berufungsbegründung ein, im Wesentlichen mit dem Antrag, die von der UEFA-Berufungskammer mit Entscheid vom 10. Juli 2013 verhängte Sperre sei aufzuheben; eventualiter sei der Entscheid vom 10. Juli 2013 aufzuheben und die Sache an die UEFA-Berufungskammer zurückzuweisen.<br />
<br />
Am 9. August 2013 reichte die UEFA ihre Berufungsantwort ein, in der sie beantragte, die Berufung sei abzuweisen und der Entscheid der UEFA-Berufungskammer zu bestätigen.<br />
<br />
Am 21. und 22. August 2013 fand in Lausanne die mündliche Hauptverhandlung statt. Dabei wurden insgesamt 20 von den Parteien bezeichnete Personen befragt; auf die Befragung von weiteren 13 Zeugen verzichtete Fenerbahce Spor Kulübü während der Verhandlung.<br />
<br />
B.d. Mit Schiedsentscheid vom 28. August 2013 (mit Begründung zugestellt am 11. April 2014) wies das TAS die Berufung ab und bestätigte den angefochtenen Entscheid der UEFA-Berufungskammer vom 10. Juli 2013.<br />
<br />
C.<br />
Mit Beschwerde in Zivilsachen beantragt Fenerbahce Spor Kulübü dem Bundesgericht, es sei der Schiedsentscheid des TAS vom 28. August 2013 aufzuheben.<br />
<br />
Die Beschwerdegegnerin beantragt die Abweisung der Beschwerde, soweit darauf einzutreten sei. Das TAS beantragt in seiner Vernehmlassung die Abweisung der Beschwerde.<br />
<br />
Der Beschwerdeführer hat dem Bundesgericht am 5. August 2014 eine Replik, die Beschwerdegegnerin am 26. August 2014 eine Duplik eingereicht.<br />
<br />
D.<br />
Mit Verfügung vom 22. Juli 2014 wies das Bundesgericht das Gesuch des Beschwerdeführers um Erteilung der aufschiebenden Wirkung ab.<br />
<br />
Mit Verfügung vom 1. September 2014 wies es das Gesuch um Wiedererwägung betreffend der nicht erteilten aufschiebenden Wirkung ab und bestätigte die Verfügung vom 22. Juli 2014.<br />
<br />
Erwägungen:<br />
<br />
1.<br />
Nach<br />
Art. 54 Abs. 1 BGG<br />
ergeht der Entscheid des Bundesgerichts in einer Amtssprache, in der Regel in jener des angefochtenen Entscheids. Wurde dieser in einer anderen Sprache redigiert, verwendet das Bundesgericht die von den Parteien gewählte Amtssprache. Der angefochtene Entscheid ist in englischer Sprache abgefasst. Da es sich dabei nicht um eine Amtssprache handelt und sich die Parteien vor Bundesgericht der deutschen Sprache bedienen, ergeht der Entscheid des Bundesgerichts auf Deutsch.<br />
<br />
2.<br />
Im Bereich der internationalen Schiedsgerichtsbarkeit ist die Beschwerde in Zivilsachen unter den Voraussetzungen der Art. 190-192 IPRG (SR 291) zulässig ( Art. 77 Abs. 1 lit. a BGG ).<br />
<br />
2.1. Der Sitz des Schiedsgerichts befindet sich vorliegend in Lausanne. Der Beschwerdeführer hatte im massgebenden Zeitpunkt seinen Sitz ausserhalb der Schweiz ( Art. 176 Abs. 1 IPRG<br />
). Da die Parteien die Geltung des 12. Kapitels des IPRG nicht ausdrücklich ausgeschlossen haben, gelangen die Bestimmungen dieses Kapitels zur Anwendung ( Art. 176 Abs. 2 IPRG ).<br />
<br />
2.2. Zulässig sind allein die Rügen, die in Art. 190 Abs. 2 IPRG<br />
abschliessend aufgezählt sind (BGE 134 III 186 E. 5 S. 187; 128 III 50 E. 1a S. 53; 127 III 279 E. 1a S. 282). Nach Art. 77 Abs. 3 BGG<br />
prüft das Bundesgericht nur die Rügen, die in der Beschwerde vorgebracht und begründet worden sind; dies entspricht der in Art. 106 Abs. 2 BGG<br />
für die Verletzung von Grundrechten und von kantonalem und interkantonalem Recht vorgesehenen Rügepflicht (BGE 134 III 186 E. 5 S. 187 mit Hinweis). Appellatorische Kritik ist unzulässig (BGE 134 III 565 E. 3.1 S. 567; 119 II 380 E. 3b S. 382).<br />
<br />
2.3. Das Bundesgericht legt seinem Urteil den Sachverhalt zugrunde, den das Schiedsgericht festgestellt hat ( Art. 105 Abs. 1 BGG<br />
). Dazu gehören sowohl die Feststellungen über den Lebenssachverhalt, der dem Streitgegenstand zugrunde liegt, als auch jene über den Ablauf des vorinstanzlichen Verfahrens, also die Feststellungen über den Prozesssachverhalt, zu dem namentlich die Anträge der Parteien, ihre Tatsachenbehauptungen, rechtlichen Erörterungen, Prozesserklärungen und Beweisvorbringen, der Inhalt einer Zeugenaussage, einer Expertise oder die Feststellungen anlässlich eines Augenscheins gehören (BGE 140 III 16 E. 1.3.1 mit Hinweisen).<br />
<br />
Das Bundesgericht kann die Sachverhaltsfeststellung des Schiedsgerichts weder berichtigen noch ergänzen, selbst wenn diese offensichtlich unrichtig ist oder auf einer Rechtsverletzung im Sinne von Art. 95 BGG<br />
beruht (vgl. Art. 77 Abs. 2 BGG , der die Anwendbarkeit von Art. 97 BGG<br />
sowie<br />
Art. 105 Abs. 2 BGG<br />
ausschliesst). Allerdings kann das Bundesgericht die tatsächlichen Feststellungen des angefochtenen Schiedsentscheids überprüfen, wenn gegenüber diesen Sachverhaltsfeststellungen zulässige Rügen im Sinne von Art. 190 Abs. 2 IPRG<br />
vorgebracht oder ausnahmsweise Noven berücksichtigt werden (BGE 138 III 29 E. 2.2.1 S. 34; 134 III 565 E. 3.1 S. 567; 133 III 139 E. 5 S. 141; je mit Hinweisen). Wer sich auf eine Ausnahme von der Bindung des Bundesgerichts an die tatsächlichen Feststellungen des Schiedsgerichts beruft und den Sachverhalt gestützt darauf berichtigt oder ergänzt wissen will, hat mit Aktenhinweisen darzulegen, dass entsprechende Sachbehauptungen bereits im schiedsgerichtlichen Verfahren prozesskonform aufgestellt worden sind (vgl. BGE 115 II 484 E. 2a S. 486; 111 II 471E. 1c S. 473; je mit Hinweisen).<br />
<br />
2.4. Der Beschwerdeführer verkennt die Bindung des Bundesgerichts an die Feststellungen im angefochtenen Entscheid über den Prozesssachverhalt, wenn er seinen rechtlichen Vorbringen eine ausführliche Sachverhaltsdarstellung voranstellt, in der er die Hintergründe des Rechtsstreits und des Verfahrens aus eigener Sicht schildert und dabei teilweise von den tatsächlichen Feststellungen des Schiedsgerichts abweicht oder diese erweitert, ohne substantiiert Ausnahmen von der Sachverhaltsbindung geltend zu machen. Die entsprechenden Ausführungen haben unbeachtet zu bleiben.<br />
<br />
Unbeachtlich sind auch die neu vorgebrachten Tatsachen ( Art. 99 Abs. 1 BGG<br />
). So trägt der Beschwerdeführer etwa vor, in der Zwischenzeit habe der türkische Kassationshof von vier Urteilen gegen Vorstandsmitglieder zwei aufgehoben und zu erneuter Verhandlung in erster Instanz zurückgewiesen.<br />
<br />
2.5. Die Beschwerde ist innert der Beschwerdefrist vollständig begründet einzureichen ( Art. 42 Abs. 1 BGG<br />
). Kommt es zu einem zweiten Schriftenwechsel, darf die beschwerdeführende Partei die Replik nicht dazu verwenden, ihre Beschwerde zu ergänzen oder zu verbessern (vgl. BGE 132 I 42 E. 3.3.4). Die Replik ist nur zu Darlegungen zu verwenden, zu denen die Ausführungen in der Vernehmlassung eines anderen Verfahrensbeteiligten Anlass geben (vgl. BGE 135 I 19 E. 2.2).<br />
<br />
Soweit der Beschwerdeführer in seiner Replik darüber hinausgeht, können seine Ausführungen nicht berücksichtigt werden.<br />
<br />
3.<br />
Der Beschwerdeführer rügt, das TAS habe den Grundsatz der Gleichbehandlung der Parteien verletzt (<br />
Art. 190 Abs. 2 lit. d IPRG ).<br />
<br />
3.1. Er bringt vor, das TAS sei bei der Beurteilung der Berufung trotz des umfangreichen Prozessstoffs primär auf Raschheit bedacht gewesen und habe nur gerade sechs Wochen nach Eingang der Berufung und innert weniger als sechs Tagen nach Abschluss einer mehrtägigen Hauptverhandlung im Wege eines beschleunigten Verfahrens entschieden, anstatt die Streitsache an die UEFA zurückzuweisen. Damit habe das TAS die Ungleichbehandlung der Parteien, die ihren Ursprung in den Verfahren vor den Instanzen der UEFA gehabt habe, fortgeführt.<br />
<br />
Die UEFA habe sich ab Sommer 2011 fast zwei Jahre Zeit genommen, bis sie dem Beschwerdeführer am 10. Juni 2013 schliesslich ihren Bericht über die erfolgten Untersuchungen zugestellt und ein Disziplinarverfahren eröffnet habe. Danach sei es "Schlag auf Schlag" gegangen, bis der Entscheid gefällt worden sei. Vor der UEFA-Kontroll- und Disziplinarkommission seien ihm gerade einmal 10 Tage Zeit für eine Stellungnahme eingeräumt worden, obwohl der massgebende Bericht wie auch die übrigen Prozessakten sehr umfangreich gewesen seien. Das anschliessende Verfahren vor der UEFA-Berufungskammer sei nichts anderes als eine Farce gewesen, habe es vom Eingang des Rechtsmittels bis zum Entscheid vom 10. Juli 2013 doch nur fünf Tage gedauert, wobei die Berufungskammer - trotz seines Protests - noch umfangreiche neue Beweisstücke der Beschwerdegegnerin zugelassen habe.<br />
Eine umfassende Prüfung und wirksamen Rechtsschutz habe der Beschwerdeführer auch vor dem TAS nicht erhalten; die umfangreiche Streitigkeit sei nach Eingang seiner Berufung in gerade einmal sechs Wochen behandelt und abgewiesen worden; die mündliche Verhandlung sei auf zwei Tage beschränkt gewesen mit entsprechend wenigen Möglichkeiten für die Partei- und Zeugenbefragungen.<br />
<br />
Dem beschleunigten Verfahren vor dem TAS habe der Beschwerdeführer nicht freiwillig zugestimmt. Grundlage des beschleunigten Verfahrens sei das Zulassungsformular (Admission Form) der UEFA gewesen, das ein Fussballclub unterzeichnen müsse, wenn er sich an UEFA-Wettbewerben beteiligen wolle. Er hätte einem beschleunigten Verfahren vor dem TAS nicht zugestimmt, wenn es eine Möglichkeit gegeben hätte, ohne Unterzeichnung des entsprechenden Formulars an den Wettbewerben der UEFA teilzunehmen; die entsprechende Erklärung könne ihm daher nicht entgegengehalten werden. Die vor den verbandsinternen Instanzen erfolgte Ungleichbehandlung habe sich im Schiedsverfahren vor dem TAS fortgesetzt. Die Beschwerdegegnerin habe rechtzeitig vor der Auslosung eine Klärung der Frage erzwingen wollen, wer an der Champions League der Saison 2013/2014 teilnehmen könne. Der Beschwerdeführer habe letztlich keine andere Wahl gehabt, als sich diesem Diktat der Beschwerdegegnerin zu unterziehen, um seine Möglichkeit zu wahren, doch noch an diesem Wettbewerb teilnehmen zu können. An der Durchführung des beschleunigten Verfahrens vor den verbandsinternen Organen und vor dem TAS habe überhaupt kein ernsthaftes Interesse bestanden; die Beschwerdegegnerin hätte ohne Weiteres ein geordnetes Beschwerdeverfahren durchführen und auch einem geordneten Ablauf des Schiedsverfahrens vor dem TAS zustimmen können. Mit ihrem einseitigen und unnötigen Beharren auf der Durchführung eines Eilverfahrens vor dem TAS habe die Beschwerdegegnerin gewollt in Kauf genommen, dass sich die Ungleichbehandlung der Parteien und damit die unzulässige Beschneidung der Verfahrensrechte vor dem TAS fortgesetzt hätten. Das TAS hätte das Recht auf Gleichbehandlung nur wahren können, indem es die Streitsache - wie beantragt - an die Beschwerdegegnerin zurückverwiesen hätte.<br />
<br />
3.2.<br />
<br />
<br />
3.2.1.<br />
Art. 190 Abs. 2 lit. d IPRG<br />
lässt die Anfechtung allein wegen der zwingenden Verfahrensregeln gemäss Art. 182 Abs. 3 IPRG<br />
zu. Danach muss das Schiedsgericht insbesondere den Anspruch der Parteien auf rechtliches Gehör wahren. Dieser entspricht - mit Ausnahme des Anspruchs auf Begründung - dem in Art. 29 Abs. 2 BV<br />
gewährleisteten Verfassungsrecht (BGE 130 III 35 E. 5 S. 37 f.; 128 III 234 E. 4b S. 243; 127 III 576 E. 2c S. 578 f.). Die Rechtsprechung leitet daraus insbesondere das Recht der Parteien ab, sich über alle für das Urteil wesentlichen Tatsachen zu äussern, ihren Rechtsstandpunkt zu vertreten, ihre entscheidwesentlichen Sachvorbringen mit tauglichen sowie rechtzeitig und formrichtig offerierten Mitteln zu beweisen, sich an den Verhandlungen zu beteiligen und in die Akten Einsicht zu nehmen (BGE 130 III 35 E. 5 S. 38; 127 III 576 E. 2c S. 578 f.; je mit Hinweisen). Der Grundsatz der Gleichbehandlung gebietet zudem, dass die Parteien während des gesamten Schiedsverfahrens gleich behandelt werden (vgl. BGE 133 III 139 E. 6.1 S. 143).<br />
<br />
3.2.2. Die Partei, die sich durch eine Verweigerung des rechtlichen Gehörs oder einen anderen nach Art. 190 Abs. 2 IPRG<br />
<br />
relevanten Verfahrensmangel für benachteiligt hält, verwirkt ihre Rügen, wenn sie diese nicht rechtzeitig im Schiedsverfahren vorbringt und nicht alle zumutbaren Anstrengungen unternimmt, um den Mangel - soweit möglich - zu beseitigen (BGE 130 III 66 E. 4.3 S. 75; 126 III 249 E. 3c S. 253 f.; 119 II 386 E. 1a S. 388; je mit Hinweisen). Die bundesgerichtliche Überprüfung des Schiedsspruchs auf Verfahrensverstösse ist mithin insoweit subsidiär, als die Parteien entsprechende Mängel zunächst beim Schiedsgericht so zu rügen haben, dass diese noch im laufenden Schiedsverfahren behoben werden können. Es widerspricht Treu und Glauben, einen Verfahrensmangel erst im Rahmen eines Rechtsmittelverfahrens zu rügen, obwohl im Schiedsverfahren die Möglichkeit bestanden hätte, dem Schiedsgericht die Gelegenheit zur Behebung des angeblichen Mangels zu geben (BGE 119 II 386 E. 1a S. 388). Treuwidrig und rechtsmissbräuchlich handelt insbesondere die Partei, die Rügegründe gleichsam in Reserve hält, um diese bei ungünstigem Prozessverlauf und voraussehbarem Prozessverlust nachzuschieben (vgl. BGE 136 III 605 E. 3.2.2 S. 609; 129 III 445 E. 3.1 S. 449; 126 III 249 E. 3c S. 254).<br />
<br />
3.3.<br />
<br />
<br />
3.3.1. Soweit der Beschwerdeführer einen Verfahrensmangel vor Bundesgericht damit begründet, ihm sei während der zweitägigen Hauptverhandlung nicht ausreichend die Möglichkeit für Partei- und Zeugenbefragungen eingeräumt worden, ist er nicht zu hören. Es ist nicht ersichtlich, inwiefern er diesen angeblichen Mangel bereits im Schiedsverfahren vorgebracht hätte; im Gegenteil ergibt sich aus den Sachverhaltsfeststellungen im angefochtenen Entscheid, dass der Beschwerdeführer die Anzahl aufgerufener Zeugen von sich aus von zunächst 53 zwei Tage vor der mündlichen Verhandlung auf 35 und einen Tag vorher auf 32 herabsetzte, wobei er noch während der mündlichen Verhandlung auf die Anhörung von 13 weiteren angerufenen Zeugen verzichtete. Die Rüge ist verwirkt.<br />
<br />
Auch mit seinen weiteren Ausführungen zeigt der Beschwerdeführer nicht auf, dass er eine Ungleichbehandlung durch das Schiedsgericht bereits während des Schiedsverfahrens gerügt hätte. Entgegen seinen Vorbringen vor Bundesgericht hat er weder in seiner Berufungsbegründung noch in der mündlichen Verhandlung auf eine Behebung des angeblichen Mangels im Schiedsverfahren hingewirkt. Vielmehr hat er sich in seiner Berufungsbegründung lediglich auf verschiedene Unzulänglichkeiten im verbandsinternen Verfahren berufen und dem TAS beantragt, die Streitsache sei an die UEFA-Berufungskammer zu neuer Beurteilung zurückzuweisen, falls das TAS seinem Hauptantrag, die verhängten Sanktionen aufzuheben, nicht folgen sollte. Kurz vor Abschluss der mündlichen Verhandlung erklärte der Beschwerdeführer, dem beschleunigten Verfahren nicht freiwillig zugestimmt zu haben, weshalb das Verfahren an die verbandsinternen Organe der UEFA zurückzuweisen sei. Dass er vor dem TAS mehr Zeit für weitere Stellungnahmen bzw. Beweiserhebungen oder eine Wiederholung bzw. Ergänzung bestimmter Verfahrensschritte beantragt, geschweige denn bereits im Schiedsverfahren eine Ungleichbehandlung gerügt hätte, zeigt der Beschwerdeführer nicht auf.<br />
<br />
Damit hat er nicht alle zumutbaren Anstrengungen unternommen, um auf eine Behebung des angeblichen Mangels im laufenden Schiedsverfahren hinzuwirken. Er verwirkte damit das Recht, sich im Rechtsmittelverfahren vor Bundesgericht auf eine angebliche Ungleichbehandlung im Sinne von<br />
Art. 190 Abs. 2 lit. d IPRG<br />
zu berufen. Auf die entsprechende Rüge ist ebenfalls nicht einzutreten.<br />
<br />
3.3.2. Ohnehin zeigt der Beschwerdeführer nicht auf, inwiefern ihn das TAS im Schiedsverfahren ungleich behandelt hätte (vgl. BGE 133 III 139 E. 6.1 S. 143). Vielmehr kritisiert er auch vor Bundesgericht vorwiegend das verbandsinterne Verfahren oder das Verhalten der Beschwerdegegnerin und leitet aus der von ihm beanstandeten Unfreiwilligkeit des beschleunigten Verfahrens nicht etwa ab, das TAS hätte ein ordentliches Verfahren durchführen müssen, sondern erblickt eine Ungleichbehandlung vielmehr in der Abweisung seiner Berufungsanträge durch das Schiedsgericht. Damit macht er richtig besehen nicht geltend, der Gegenpartei sei im Rahmen des Schiedsverfahrens, in dem die Streitsache in tatsächlicher und rechtlicher Hinsicht neu beurteilt werden kann, verfahrensrechtlich etwas gewährt worden, was ihm verweigert wurde, sondern kritisiert in unzulässiger Weise den Inhalt des angefochtenen Schiedsspruchs.<br />
<br />
4.<br />
Der Beschwerdeführer wirft dem Schiedsgericht vor, durch überraschende Rechtsanwendung seinen Anspruch auf rechtliches Gehör ( Art. 190 Abs. 2 lit. d IPRG ) verletzt zu haben.<br />
<br />
4.1. Nach bundesgerichtlicher Rechtsprechung besteht kein verfassungsrechtlicher Anspruch der Parteien, zur rechtlichen Würdigung der durch sie in den Prozess eingeführten Tatsachen noch besonders angehört zu werden. Ebenso wenig folgt aus dem Gehörsanspruch, dass die Parteien vorgängig auf den für den Entscheid wesentlichen Sachverhalt hinzuweisen wären. Eine Ausnahme besteht namentlich, wenn ein Gericht seinen Entscheid mit einem Rechtsgrund zu begründen beabsichtigt, auf den sich die beteiligten Parteien nicht berufen haben und mit dessen Erheblichkeit sie vernünftigerweise nicht rechnen mussten (BGE 130 III 35E. 5 S. 39; 126 I 19 E. 2c/aa S. 22 und E. d/bb S. 24; 124 I 49 E. 3c S. 52).<br />
<br />
4.2. Der Beschwerdeführer bringt vor, die UEFA-Berufungskammer habe ihn wegen insgesamt acht manipulierter Spiele und wegen unwahrer Angaben im Zulassungsformular zu einem (unbedingten) zweijährigen Ausschluss von den europäischen Clubwettbewerben verurteilt. Das TAS habe die Verurteilung wegen unwahrer Angaben im verwendeten Formular aufgehoben und zudem befunden, dass der Beschwerdeführer lediglich versucht habe, vier Spiele zu manipulieren. Dies habe jedoch zu keiner Strafreduktion geführt; stattdessen habe das TAS die zweijährige Sanktion bestätigt. Der Beschwerdeführer bezeichnet dieses Ergebnis als einen "ins Auge springenden Betriebsunfall" bei der Strafzumessung, zu dem es aufgrund eines im bisherigen Verfahren nie thematisierten Analogieschlusses mit den Strafzumessungsregelungen des World Anti-Doping Code (WADA-Code) gekommen sei. Das TAS habe den Parteien jedoch keine Möglichkeit gegeben, sich zu dieser "völlig überraschenden Analogie" zu äussern.<br />
<br />
4.3. Entgegen dem, was der Beschwerdeführer anzunehmen scheint, hat das TAS die Strafzumessungskriterien nach Artikel 17 des UEFA-Disziplinarreglements (Ausgabe 2008) nicht etwa zugunsten derjenigen des WADA-Code ausser Acht gelassen, sondern hat sich bei der Strafzumessung durchaus auf diese Bestimmung gestützt. Ausserdem ist das Schiedsgericht ausdrücklich darauf eingegangen, weshalb es die verhängte Sanktion nicht herabsetzte, obwohl es im Unterschied zu den verbandsinternen Instanzen Spielmanipulationen "nur" in vier Fällen als erstellt erachtete. Insbesondere hielt das TAS gestützt auf Artikel 17 des UEFA-Disziplinarreglements eine zweijährige Sperre im konkreten Fall für eindeutig gerechtfertigt.<br />
Das Schiedsgericht erachtete unter Berücksichtigung seiner eigenen Rechtsprechung, nach der für Spielmanipulationen Sanktionen zwischen einem und acht Jahren verhängt wurden, angesichts der besonderen Schwere des Falls im Vergleich mit bisher beurteilten Spielmanipulationen gar eine Sanktion am oberen Ende dieses Spektrums für angemessen, beliess es aber mit Hinweis auf den Grundsatz ultra petita - die Beschwerdegegnerin hatte auf eine Berufung verzichtet - bei der zweijährigen Sperre. Dem Hinweis des TAS darauf, dass in Dopingfällen vergleichbare Strafen ausgesprochen werden, womit grundsätzlich eine zweijährige Sperre zu verhängen wäre, die bei besonders schweren Vergehen höher und bei mildernden Umständen tiefer anzusetzen wäre, kam somit - entgegen der in der Beschwerde vertretenen Ansicht - keineswegs "die alles entscheidende Bedeutung für die Festlegung des Strafmasses" zu. Das TAS war unter diesen Umständen nicht verpflichtet, dem Beschwerdeführer eigens Gelegenheit einzuräumen, zu den Strafzumessungsregelungen des WADA-Code Stellung zu nehmen.<br />
<br />
Eine den Gehörsanspruch verletzende überraschende Rechtsanwendung liegt nicht vor.<br />
<br />
5.<br />
Der Beschwerdeführer wirft dem TAS vor, in Verletzung des Gehörsanspruchs verschiedene seiner entscheiderheblichen Vorbringen nicht geprüft zu haben.<br />
<br />
5.1. Der Anspruch auf rechtliches Gehör in einem kontradiktorischen Verfahren gemäss<br />
Art. 182 Abs. 3 und<br />
Art. 190 Abs. 2 lit. d IPRG<br />
umfasst nach ständiger Rechtsprechung nicht auch den Anspruch auf Begründung eines internationalen Schiedsentscheids (BGE 134 III 186E. 6.1 mit Hinweisen). Dennoch ergibt sich daraus eine minimale Pflicht der Schiedsrichter, die entscheiderheblichen Fragen zu prüfen und zu behandeln. Diese Pflicht verletzt das Schiedsgericht, wenn es aufgrund eines Versehens oder eines Missverständnisses rechtserhebliche Behauptungen, Argumente, Beweise oder Beweisanträge einer Partei unberücksichtigt lässt. Das bedeutet jedoch nicht, dass sich das Schiedsgericht ausdrücklich mit jedem einzelnen Vorbringen der Parteien auseinandersetzen muss (BGE 133 III 235 E. 5.2 mit Hinweisen).<br />
<br />
5.2.<br />
<br />
5.2.1. Der Beschwerdeführer wirft dem Schiedsgericht zunächst vor, es habe bei der Beurteilung der Kompetenz der UEFA zur Verhängung von Sanktionen wegen Spielmanipulationen einzelne seiner Vorbringen vollständig ausser Acht gelassen. So habe er geltend gemacht, dass er im Zeitpunkt der Austragung einiger der umstrittenen Spiele Artikel 2.06 der Regulations of the UEFA Champions League (UCLR) noch gar nicht als verbindlich anerkannt habe. Dazu habe sich das Schiedsgericht ebenso wenig geäussert wie zu seinem Argument, dass nach der Rechtsprechung des TAS die Disziplinarregelungen der UEFA nach deren Wortlaut und Regelungszusammenhang objektiv auszulegen seien. Auch auf sein Argument, wonach die Auslegung von Verbandsregelungen -insbesondere Disziplinarregelungen - im Zweifel zu Lasten des Verwenders zu erfolgen habe, sei das TAS mit keinem Wort eingegangen. Zudem seien seine Vorbringen zur Auslegung und Bedeutung des von der Beschwerdegegnerin in der mündlichen Verhandlung vorgelegten Rundschreibens Nr. 24/2013 der UEFA nicht geprüft und gewürdigt worden. Hätte das Schiedsgericht seine entscheiderheblichen Argumente zur fehlenden Strafkompetenz der UEFA geprüft, so der Beschwerdeführer, hätte es seine Berufung gutheissen müssen.<br />
<br />
5.2.2. Das Schiedsgericht führt die Problematik der Zuständigkeit der UEFA zur Durchführung eines Disziplinarverfahrens im angefochtenen Entscheid als eine der zu beurteilenden Hauptfragen auf. Es fasste den Standpunkt des Beschwerdeführers hierzu dahingehend zusammen, dass sich die bestrittenen Vorwürfe der Spielmanipulation auf Meisterschaftsspiele der Saison 2010/2011 bezögen und somit nach den massgebenden Verbandsbestimmungen nicht in die Disziplinarkompetenz der UEFA fielen.<br />
<br />
Das Schiedsgericht prüfte in der Folge die Kompetenz der UEFA zur Ahndung von Spielmanipulationen eingehend. Dabei wies es unter anderem ausdrücklich auf das Argument des Beschwerdeführers hin, wonach der UEFA im Zeitpunkt des ihm vorgeworfenen Verhaltens nach den damals anwendbaren Verbandsregeln die erforderliche Disziplinarkompetenz gefehlt habe; eine solche sei nach Ansicht des Beschwerdeführers erst nachträglich eingeführt worden, weshalb sich die Zuständigkeit für die erfolgte Bestrafung weder auf Artikel 50 (3) der UEFA-Statuten noch auf Artikel 2.05 bzw. 2.06 UCLR oder Artikel 5 des Disziplinarreglements stützen lasse. Das Schiedsgericht prüfte die Problematik der rechtlichen Grundlage für eine Sanktionierung der fraglichen Spielmanipulationen durch die UEFA ausführlich, indem es die erwähnten Bestimmungen auslegte und dabei auch deren Anwendbarkeit in zeitlicher Hinsicht beurteilte. Dabei äusserte es sich unter anderem zur Auslegung und Bedeutung des Rundschreibens Nr. 24/2013.<br />
<br />
Dem Schiedsgericht kann unter diesen Umständen nicht vorgeworfen werden, es habe seine minimale Pflicht verletzt, die entscheiderheblichen Fragen zu prüfen und zu behandeln (vgl. BGE 133 III 235 E. 5.2 S. 248 mit Hinweisen). Angesichts der ausführlichen Begründung im angefochtenen Entscheid ist davon auszugehen, dass es die vom Beschwerdeführer ins Feld geführten Argumente zumindest sinngemäss verworfen hat. Das Schiedsgericht hat den Gehörsanspruch des Beschwerdeführers nicht verletzt, indem es sich nicht mit jedem einzelnen seiner Vorbringen zur Anwendbarkeit von Artikel 2.06 UCLR, zur angeblich massgebenden Auslegungsmethode bei Verbandsregelungen oder zur Auslegung und Bedeutung des Rundschreibens Nr. 24/2013 ausdrücklich auseinandersetzte.<br />
<br />
5.3. Der Beschwerdeführer rügt weiter, er habe im Schiedsverfahren vorgetragen, dass die von der Beschwerdegegnerin ausgesprochene Sanktion gegen den im Strafrecht geltenden Grundsatz nulla poena sine lege verstosse. Das Schiedsgericht setze sich in seinem Entscheid mit diesem Einwand jedoch in keiner Weise auseinander. Einzelne Überschriften ("[...] and were the sanctions imposed in accordance with the legality principle?" oder "Is there a sufficient legal basis for the disciplinary measure?") liessen an sich darauf schliessen, dass diese Frage inhaltlich abgehandelt werden sollte, was jedoch nicht zutreffe.<br />
<br />
Der in der Beschwerde erhobene - jedoch nicht weiter begründete - Vorwurf, die erwähnten Überschriften entpuppten sich als "reiner Etikettenschwindel", ist nicht nachvollziehbar. Der Beschwerdeführer stellt selbst nicht in Abrede, dass das Schiedsgericht sein Argument, wonach die für die verhängte Sanktion herangezogenen Verbandsbestimmungen die Anforderungen des Legalitätsprinzips ( nulla poena sine lege scripta et certa ) in der Entscheidbegründung ausdrücklich aufführt. Es leitet seine Ausführungen zum Legalitätsprinzip unter der Überschrift "Is there a sufficient legal basis for the disciplinary measure?" damit ein, nach schweizerischem Recht und ständiger Rechtsprechung des TAS setze die Verhängung einer Disziplinarmassnahme eine hinreichend klare und unzweideutige Rechtsgrundlage ("a clear and unambigous legal basis for the sanction") voraus. Die Rechtssicherheit verlange, dass die anwendbare Bestimmung - im konkreten Fall Artikel 2.06 UCLR - hinreichend bestimmt sei, was das Schiedsgericht in der Folge prüfte und -für Spielmanipulationen, nicht jedoch für den Vorwurf unwahrer Angaben im Zulassungsformular -bejahte.<br />
Ein Versehen oder ein Missverständnis, aufgrund dessen das Schiedsgericht ein rechtserhebliches Argument des Beschwerdeführers unberücksichtigt gelassen hätte, liegt auch in diesem Zusammenhang nicht vor.<br />
<br />
5.4. Eine Gehörsverletzung ist auch hinsichtlich der Argumente des Beschwerdeführers zur Bemessung der Disziplinarmassnahme nicht erkennbar. Das Schiedsgericht hat die entsprechenden Vorbringen im angefochtenen Entscheid ausdrücklich aufgeführt und die Höhe der Sanktion eingehend geprüft. Indem der Beschwerdeführer die schiedsgerichtliche Begründung als "nicht nachvollziehbar" bezeichnet, übt er lediglich unzulässige Kritik am angefochtenen Entscheid, ohne jedoch eine Verletzung des Gehörsanspruchs aufzuzeigen.<br />
<br />
6.<br />
Der Beschwerdeführer wirft dem TAS eine Verletzung des Ordre public vor.<br />
<br />
6.1. Er bringt vor, der angefochtene Schiedsspruch verstosse gegen den zum Ordre public gemäss Art. 190 Abs. 2 lit. e IRPG gehörenden Grundsatz ne bis in idem (Verbot der doppelten Strafverfolgung). Es seien zwei Strafen wegen der gleichen Tat gegen ihn ausgesprochen worden. Die vom TAS mit dem angefochtenen Entscheid verhängte bzw. bestätigte Strafe verstosse gegen den erwähnten Grundsatz und sei daher mit dem Ordre public unvereinbar.<br />
<br />
6.2.<br />
<br />
6.2.1. Ein Verstoss gegen den verfahrensrechtlichen Ordre public liegt vor bei einer Verletzung fundamentaler und allgemein anerkannter Verfahrensgrundsätze, deren Nichtbeachtung zum Rechtsempfinden in einem unerträglichen Widerspruch steht, so dass die Entscheidung als mit der in einem Rechtsstaat geltenden Rechts- und Wertordnung schlechterdings unvereinbar erscheint (BGE 140 III 278 E. 3.1; 136 III 345 E. 2.1 S. 347 f.; 132 III 389 E. 2.2.1 S. 392; 128 III 191 E. 4a S. 194).<br />
<br />
Das Schiedsgericht verletzt den verfahrensrechtlichen Ordre public, wenn es bei seinem Entscheid die materielle Rechtskraft eines früheren Entscheids unbeachtet lässt oder wenn es in seinem Endentscheid von der Auffassung abweicht, die es in einem Vorentscheid hinsichtlich einer materiellen Vorfrage geäussert hat (BGE 140 III 278 E. 3.1; 136 III 345 E. 2.1 S. 348; je mit Hinweisen).<br />
<br />
Der Grundsatz ne bis in idem gehört grundsätzlich ebenfalls zum Ordre public im Sinne von Art. 190 Abs. 2 lit. e IPRG<br />
. Das Bundesgericht hat allerdings offengelassen, ob dieser strafrechtliche Grundsatz im Disziplinarrecht des Sports gleichermassen zu berücksichtigen ist (Urteil 4A_386/2010 vom 3. Januar 2011 E. 9.3.1). Die Frage braucht auch im vorliegenden Verfahren nicht vertieft zu werden, ging das TAS doch selbst von dessen Anwendbarkeit aus und prüfte die Vereinbarkeit der Sanktion mit diesem Prinzip eingehend. Das Bundesgericht beschränkt sich daher auf eine Überprüfung der konkreten Anwendung des erwähnten Grundsatzes durch das Schiedsgericht (vgl. Urteil 4A_386/2010, a.a.O., E. 9.3.1 a.E.).<br />
<br />
6.2.2. Der Beschwerdeführer hatte im Schiedsverfahren eine Verletzung des Grundsatzes ne bis in idem darin erblickt, dass er bereits mit Entscheid des türkischen Fussballverbands vom 24. August 2011 von der Champions League der Spielsaison 2011/2012 ausgeschlossen worden war; er könne daher nicht ein zweites Mal von den Wettbewerben der UEFA ausgeschlossen werden.<br />
<br />
Das Schiedsgericht erwog, der damals vom türkischen Verband TFF verfügte Ausschluss für die Saison 2011/2012 schliesse eine spätere Sperre für weitere Spielsaisons im Rahmen eines Disziplinarverfahrens nicht aus. Es stützte sich dabei auf Artikel 50 (3) der UEFA-Statuten (Ausgabe 2010) sowie Artikel 2.05 und 2.06 UCLR (2011/2012), die wie folgt lauten:<br />
<br />
Artikel 50 (3) der UEFA-Statuten (2010) :<br />
<br />
"The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures."<br />
<br />
Artikel 2.05 UCLR (2011/2012) :<br />
<br />
"If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50 (3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. Such ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court. UEFA can refrain from declaring a club ineligible to participate in the competition if UEFA is comfortably satisfied that the impact of a decision taken in connection with the same factual circumstances by a national or international sporting body, arbitral tribunal or state court has already had the effect to prevent that club from participating in a UEFA club competition."<br />
Artikel 2.06 UCLR (2011/2012) :<br />
<br />
"In addition to the administrative measure of declaring a club ineligible, as provided for in paragraph 2.05, the UEFA Organs for the Administration of Justice can, if the circumstances so justify, also take disciplinary measures in accordance with the UEFA Disciplinary Regulations."<br />
<br />
Das Schiedsgericht erwog, dass Artikel 50 (3) der UEFA-Statuten in Verbindung mit Artikel 2.05 und 2.06 UCLR ein zweistufiges Verfahren vorsehe: In einer ersten Stufe werde gestützt auf Artikel 2.05 UCLR eine Administrativmassnahme ("administrative measure") in Form eines einjährigen Ausschlusses vom europäischen Clubwettbewerb ausgesprochen. In einer zweiten Stufe werde eine Disziplinarmassnahme verhängt, die keine zeitliche Höchstdauer kenne, und zusätzlich zur Administrativmassnahme ( "In addition to the administrative measure [...]" ) erlassen werden könne. Die beiden Arten von Spielsperren seien nach dem Regelungszweck der erwähnten Bestimmungen klar auseinanderzuhalten, indem zunächst mit sofortiger Wirkung ein Ausschluss vom Wettbewerb verhängt werde, bevor die UEFA die vorgeworfenen Verfehlungen eingehend prüfe. Die UEFA habe ein schutzwürdiges Interesse, einen Fussballclub unverzüglich vom Wettbewerb auszuschliessen, ohne zunächst ein umfangreiches Disziplinarverfahren gegen ihn einzuleiten. Die Administrativmassnahme, so das TAS, stelle somit nicht die endgültige, sondern lediglich eine vorläufige minimale Sanktion dar, die den Schutz der Integrität des konkreten Wettkampfs bezwecke.<br />
<br />
6.2.3. Die Anwendung des Prinzips ne bis in idem setzt unter anderem voraus, dass dem Gericht im ersten Verfahren die Möglichkeit zugestanden haben muss, den Sachverhalt unter allen tatbestandsmässigen Punkten zu würdigen (BGE 135 IV 6 E. 3.3; 119 Ib 311 E. 3c mit Hinweisen). Inwiefern dies zutreffen soll, nachdem es im ersten Verfahren des türkischen Fussballverbands doch lediglich um eine Administrativmassnahme ging, um die Integrität des konkreten Wettkampfs in einem vorläufigen Verfahren zeitgerecht zu schützen, und nicht um ein umfassendes Disziplinarverfahren zur abschliessenden Beurteilung der vorgeworfenen Verfehlungen, leuchtet nicht ein. Wie das Bundesgericht in einem Entscheid im Bereich der Sportschiedsgerichtsbarkeit festgehalten hat, setzt die Anwendung des Doppelbestrafungsverbots unter anderem eine Identität der geschützten Rechtsgüter voraus; zudem wies es darauf hin, dass dieses Verbot nicht ausschliesst, dass dasselbe Verhalten neben strafrechtlichen auch zivilrechtliche, verwaltungsrechtliche oder disziplinarische Folgen nach sich zieht (Urteil 4A_386/2011 vom 3. Januar 2011 E. 9.3.2).<br />
<br />
Auf den Umstand, dass mit den unterschiedlichen Verfahren nach Artikel 2.05 und 2.06 UCLR auch je verschiedene Zwecke verfolgt und insoweit verschiedene Rechtsgüter geschützt werden, geht der Beschwerdeführer allerdings nicht ein. Er begnügt sich vielmehr mit dem Hinweis darauf, dass das Schiedsgericht bei beiden Verfahren von Sanktionen ("sanctions") spricht, womit er nicht aufzeigt, dass es sich bei dem nach Artikel 2.05 verfügten einjährigen Ausschluss um einen Entscheid handelt, der denselben Gegenstand wie die nachfolgend gestützt auf Artikel 2.06 ausgesprochene Disziplinarmassnahme aufweist. Angesichts des geschilderten zweistufigen Verfahrens mit je unterschiedlichem Regelungszweck ist auch nicht erkennbar, inwiefern dem türkischen Verband TFF im ersten Verfahren bereits die Möglichkeit zugestanden hätte, den Sachverhalt abschliessend unter allen tatbestandsmässigen Punkten zu würdigen.<br />
Dem TAS ist keine Verletzung des Grundsatzes ne bis in idem vorzuwerfen. Die Rüge der Verletzung des Ordre public stösst somit ins Leere.<br />
<br />
7.<br />
Die Beschwerde erweist sich als unbegründet und ist abzuweisen, soweit darauf eingetreten werden kann. Dem Ausgang des Verfahrens entsprechend wird der Beschwerdeführer kosten- und entschädigungspflichtig ( Art. 66 Abs. 1 sowie Art. 68 Abs. 2 BGG<br />
<br />
Demnach erkennt das Bundesgericht:<br />
<br />
1.<br />
Die Beschwerde wird abgewiesen, soweit darauf einzutreten ist.<br />
<br />
2.<br />
Die Gerichtskosten von Fr. 30'000.-- werden dem Beschwerdeführer auferlegt.<br />
<br />
3.<br />
Der Beschwerdeführer hat die Beschwerdegegnerin für das bundesgerichtliche Verfahren mit Fr. 35'000.-- zu entschädigen.<br />
<br />
4.<br />
Dieses Urteil wird den Parteien und dem Tribunal Arbitral du Sport (TAS) schriftlich mitgeteilt.<br />
<br />
Lausanne, 16. Oktober 2014<br />
<br />
Im Namen der I. zivilrechtlichen Abteilung des Schweizerischen Bundesgerichts<br />
<br />
Die Präsidentin: Klett<br />
<br />
Der Gerichtsschreiber: Leemann<br />
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<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-82052441694819041112016-05-22T20:17:00.001+01:002016-05-22T20:57:49.508+01:00Pannomial Fragments<div style="text-align: justify;">
Pannomial Fragments, by Jeremy Bentham</div>
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_____________________________________________________________<br />
<br />
PANNOMIAL FRAGMENTS<br />
CHAPTER I.<br />
GENERAL OBSERVATIONS.<br />
BY a Pannomion, understand on this occasion an all-comprehensive collection of law,—that is to say, of rules expressive of the will or wills of some person or persons belonging to the community, or say society in question, with whose will in so far as known, or guessed at, all other members of that same community in question, whether from habit or otherwise, are regarded as disposed to act in compliance.<br />
In the formation of such a work, the sole proper all-comprehensive end should be the greatest happiness of the whole community, governors and governed together,—the greatest-happiness principle should be the fundamental principle.<br />
The next specific principle is the happiness-numeration principle.<br />
Rule: In case of collision and contest, happiness of each party being equal, prefer the happiness of the greater to that of the lesser number.<br />
Maximizing universal security; — securing the existence of, and sufficiency of, the matter of subsistence for all the members of the com-munity;—maximizing the quantity of the matter of abundance in all its shapes; — securing the nearest approximation to absolute equality in the distribution of the matter of abundance, and the other modifications of the matter of property ; that is to say, the nearest approximation consistent with universal security, as above, for subsistence and maximization of the matter of abundance: — by these denominations, or for shortness, by the several words security, subsistence, abundance, and equality, may be characterized the several specific ends, which in the character of means stand next in subordination to the all embracing end — the greatest happiness of the greatest number of the individuals be-longing to the community in question.<br />
The following are the branches of the pannomion, to which the ends immediately subordinate to the greatest-happiness principle respectively correspond: —<br />
To constitutional law, the axioms and principles applying to equality.<br />
To penal law, the axioms and principles applying to security; viz. as to—1. Person; 2. Reputation; 3. Property; 4. Condition in life.<br />
The principle presiding over that branch of the penal code, which is employed in the en-deavour to arrest, or apply remedy to offences considered as being and being intended to be productive of suffering to one party, without producing enjoyment, otherwise than from the contemplation of such suffering, to the other, is the positive-pain-preventing principle.<br />
Rule: Let not any one produce pain on the part of any other, for no other purpose than the pleasure derived from the contemplation of that same pain.<br />
The persons for the regulation of whose conduct the positive-pain-preventing principle applies are —<br />
1. The subject citizens, taken at large.<br />
2. The sovereign, in respect of the quantity, and thence the quality of the subsequentially preventive, or say punitive, remedy applied by him against any offence.<br />
To civil law, more particularly, apply the axioms relating to security as to property. Sole principle — the disappointment-preventing principle.<br />
Rule applying to the aggregate, composed of the several sources of positive good or happiness, elements of prosperity, objects as they thus are of general desire: Among a number of persons, competitors actually or eventually possible, for the benefit or source of happiness in question, exceptions excepted, give it to that one in whose breast the greatest quantity of pain of disappointment will have place, in the event of his not having the thing thenceforward in his possession, or say, at his command.<br />
The exception is when, by any different disposition, happiness in greater quantity, probability taken into account, will be produced.<br />
Of any such exception the existence ought not to be assumed: if it exist, the proof of its existence lies upon him by whom its existence is asserted.<br />
To political economy apply the axioms and principles relating to subsistence and abundance. To political economy— that is to say, to those portions of the penal and civil codes in the rationale of which considerations suggested by the art and science of political economy are applicable and have place: considerations over and above and independent of the sensations produced by loss and gain.<br />
By axioms of moral and political pathology, understand so many general propositions, by each of which statement is made of the pleasure or pain (chiefly of the pain) produced by the several sorts of evils, which are the result of human agency on the part of the several individuals respectively affected by them; to wit, by means of the influence exercised by them on the quantity or degree in which the benefits expressed by the fore-mentioned all important words, are by the respective parties, agents and patients, enjoyed, or the opposite burthens constituted by the absence of them endured.<br />
Of these propositions, it will be observed that they divide themselves into groups ; — one group being relative to security, another to subsistence, a third to abundance, the fourth and last to equality: the first bringing to view the enjoyment derived from the un-disturbed possession of security at large — security in the most comprehensive application made of the word, contrasted with the enjoyment producible by the breach of it, — the second group bringing to view the subject of subsistence; — the third group bringing to view the subject of abundance, — and the fourth group bringing to view the subject of equality, and stating the evil consequence of any legislative arrangement by which a defalcation from the maximum of practicable equality is effected.<br />
In each of the axioms, the antagonizing, or say competing, interests of two parties are conjointly brought to view: — in those which relate to security, these parties are, the maleficent agent, or say wrongdoer, and the patient wronged:—in those which relate to subsistence, abundance, and equality, they are the parties whose interests stand in com-petition, no blame being supposed to have place on either side. By the legislator, preference should be given to that interest by preference to which the happiness of the greatest number will be most augmented.<br />
To the first of the three stages of the progress made in society by the good or evil flowing from a human act, belong the effects of which indication is given in and announced by these same four groups of axioms.<br />
The principles which form the groundwork of the here proposed system, correspond to the above-mentioned specific ends, immediately subordinate to the all-comprehensive end, expressed for shortness by the greatest-happiness principle,—and have their foundation in observations on the pathology of the human mind as expressed in the above-mentioned propositions, to which, in consideration of their supposed incontrovertibility and extensive applicability, have been given, for distinction sake, the name of axioms.<br />
As to these principles, the names by which expression is given to them have for their object and purpose conciseness — the conveying, by means of these several compound substantives, a conception of the several groups of pathological effects in a manner more concise, and thence more commodious, than by a repetition made each time of the several groups of axioms to which they cor-respond, and which they are employed to recall to mind.<br />
Correspondent to the axioms having reference to security, will be found the principles following: —<br />
1. Principle correspondent to security, and the axioms thereto belonging, is the security-providing principle.<br />
Of the security-providing principle, the following modifications may be brought to view, corresponding to the several object* respecting which security requires to be af-forded : —<br />
I. The objects for, or say in respect of which, security is endeavoured, are these —<br />
1. Person: the person of individuals on the occasion of which body and mind require to be distinguished.<br />
2. Reputation: the reputation of individuals or classes, or say the degree of estimation in which they are respectively held.<br />
3. Property: the masses of the matter of wealth respectively belonging to them, and possessed by them in the shape of capital, or in the shape of income.<br />
4. Power: the portions of power respectively belonging to them, for whose sake so-ever, or say to whose benefit so-ever exercisable, whether for the sake and benefit of the individual power-holder himself—or for the sake of other persons, one or more, in any number; in which case the power is styled a trust, and the power-holder a trustee, and the person or persons for whose benefit it is exercised, or designed to be exercised, entitled benefitee, and the person or persons by whom the trust was created a trustor.<br />
5. Rank: or say factitious reputation or estimation, — the source of factitious reputation or estimation put into the possession of the individual by a series of delusions operating on the imagination.<br />
6. Condition in life, in so far as beneficial: the aggregate benefits included in it will be found composed of the above objects, two or more of them.<br />
N. B. The four last-mentioned objects may, for conciseness sake, be spoken of as so many modifications of the matter of prosperity.<br />
7. Miscellaneous rights: including exemptions from burthensome obligations.<br />
2. The maleficent acts, or say offences, against which the endeavour is used to apply the appropriate punitive and other remedies.<br />
3. The contingently maleficent agents, against whose maleficent acts the endeavour will be used to employ the several remedial applications. These may be —<br />
<br />
1. External, or say foreign governments and subjects, considered as liable to become adversaries. Code in which provision is made against evil from that source, the Constitutional. Ch. &c. Defensive Force — sub-departments of the administration department, those of the army and the navy ministers.<br />
2. Internal; viz. fellow-citizens; as distinguished into—1. Fellow-citizens at large, or say non-functionaries; 2. Functionaries considered in respect of the evil producible by them in such their several capacities.<br />
4. The several classes of persons to whom, by the several arrangements employed, the security is endeavoured to be afforded. These may be distinguished into — (1.) Citizens of the state ir. question; distinguished into — 1. Persons considered in their individual capacities: correspondent offences — private offences. 2. Persons considered in classes: correspondent offences—semi-public offences. 3. Functionaries as such considered in the aggregate: correspondent offences—public offences, such as are purely public in contra-distinction to such as are private-public; of-fences affecting their individual capacity, but constituted public offences by the indefinable multitude of the individuals liable to be affected. (2.) Foreigners with reference to the state in question; — governments and subjects as above included.<br />
A modification of the security-providing principle, applying to security in respect of all modifications of the matter of property, is the disappointment-preventing principle. The use of it is to convey intimation of the reason for whatever arrangements come to be made for affording security in respect of property and the other modifications of the matter of prosperity, considered with a view to the interest of the individual possessor. In the aggregate of these are contained all the security-requiring objects, as above, with the exception of person.<br />
II. Subsistence-securing principle: correspondent subordinate end in view — subsistence. The use of it is to convey intimation of the reason for whatever arrangements come to be made for the purpose of securing, for the use of the community in question, a sufficient quantity of the matter of subsistence.<br />
III. Abundance-maximizing principle: the use of it is to convey intimation of the reasons for whatever arrangements may come to be made in contemplation of their conduciveness to the accomplishment of that end.<br />
IV. Equality-maximizing, or say, more properly, inequality - minimizing principle: the use of it is to convey intimation of the reasons for whatever arrangements come to be made, in contemplation of their conduciveness to this end.<br />
<br />
CHAPTER II.<br />
C0NSIDERANDA.<br />
SUBJECTS of consideration on the present occasion are the following: — Pleasures and pains—happiness and unhappiness—good and evil—ends and means—rules and principles — axioms of pathology, physical, and mental —or say psychological—observation and experiment. Of these, many are mutually correlative, — all are intimately connected with, and give and receive explanation to and from each other.<br />
Happiness is a word employed to denote the sum of the pleasures experienced during that quantity of time which is under consideration, deduction made or not made of the quantity of pain experienced during that same quantity of time.<br />
Unhappiness is a word employed to denote the sum of pains experienced during the quantity of time which is under consideration, deduction made or not made of the quantity of pleasure experienced during that same quantity of time.<br />
Good is a word employed to denote either pleasure, or exemption from pain — and the cause efficient, and more or less effective, of either.<br />
Evil is a word employed to denote either pain or loss of pleasure, or a cause efficient, and more or less effective, of either.<br />
In regard to good and evil, consider —<br />
I. Their condition or import as to existence<br />
and non-existence.<br />
Their existential character, or say character or mode of designation in regard to existence, or say logical character: —this is either positive or negative.<br />
Positive good, is that which assumes not the existence of evil, and which accordingly might have place if there were no such thing as evil.<br />
Negative good, is that which is constituted by the non-existence of evil on the occasion in question.<br />
Positive evil, is that which assumes not the existence of good, and which accordingly might have place, if there were no such thing as good.<br />
II. In regard to each, their quality.<br />
By good, understand either pleasure, or the absence—or say, on the occasion in question, the non-existence — of pain. Pleasure is positive good; absence of pain—negative good.<br />
By evil, understand either pain, or the absence — or say, on the occasion in question, the non-existence—of pleasure. Pain is positive evil; absence of pleasure—if arising from loss — negative evil.<br />
III. Their relation in respect of causality.<br />
Understand by good, either actual pleasure,<br />
or absence of pain, or anything considered as the cause of pleasure, or the absence of pain.<br />
Understand by evil, either actual pain, or absence of pleasure, or anything considered as the cause of pain or of the absence of pleasure.<br />
IV. Their quantity, in respect of— 1. Intensity; 2. Duration; 3. Extent.<br />
V. Their productiveness — or say fecundity— 1. Direct; 2. Inverse.<br />
VI. Part taken by human action in the<br />
production of them.<br />
1. Wish, or say desire; 2. Direction to action in consequence—or say, in pursuance of such wish.<br />
End is a word employed to denote a good, the prospect of eventually experiencing which, operates as a motive tending to produce at the hands of any sensitive being, some good which is an object of human desire and hope.<br />
Means is a word employed to denote any substance, state of things, or matter, considered as contributing to the attainment of the good, which on that same occasion is regarded as an end.<br />
Pleasures and exemptions from pains, with their respective correlatives, happiness and exemption from unhappiness, are the ultimate ends of action.<br />
As between good and evil, good alone is an ultimate end of the action of a sensitive being.<br />
Good and evil, both are means in their nature capable of being made conducive to the attainment of the ultimate end—the net maximum of happiness; and accordingly by men in general, and by men in the situation of legislators in particular, are employed in that view, and for that purpose.<br />
Of good or evil, one and the same portion is capable of acting, on one and the same occasion, in the character of an end, and in that of a means: — of a means in relation to some antecedent end or state of things—of an end in relation to some eventually subsequent state of things.<br />
Remedy, in all its shapes, is an instrument having for its use the exclusion of wrong in all its several shapes — or say, the exclusion of maleficence in all its several shapes.<br />
Of remedy in every shape, the application made is attended with and productive of burthen.<br />
The application of remedy, instead of excluding wrong, is productive of wrong, if and in so for as it is productive of burthen out-weighing the benefit.<br />
In this way may effects and causes be seen linked together, as it were, in a chain composed of links in indefinite number, and, taken in the aggregate, of correspondent length.<br />
So much for the matter of good, being that the production of which is, or at least ought to be the object, or say end in view, of everything which passes under the denomination of law — or a law: — and so much for good and evil, —both of them employed as means, and the only means employable, for the attainment of that end.<br />
But what is a law, and what are laws themselves? Before this is explained, must be brought to view that species of matter which on each occasion is occupied in passing judgment on the aptitude of the law in question, considered as a means employed in and for the attainment of that end. To this purpose comes the need of the ideas, expression to which is given by the two mutually and intimately connected words rule and principle.<br />
Correspondent to every rule you may have a principle: correspondent to every principle you may have a rule.<br />
Of these two, a rule is the object which requires first to be taken into consideration and presented to view. Why ? Because it is only by means of a rule that any moving force can be applied to the active faculty, or any guide to the intellectual—any mandate can be issued—any instruction given.<br />
A rule is a proposition—an entire proposition: a principle is but a term: True it is, that by a principle instruction may be conveyed. Conveyed? Yes: but how? No otherwise than through the medium of a proposition— the corresponding proposition — the proposition which it has the effect of presenting to the mind. Of presenting? Yes: and we may add, and of bringing back; for only in so far as the rule has been at the time in question, or some anterior time pre-sent to the mind, can any instruction, any clear idea be presented to the mind by a principle.<br />
A principle, therefore, is as it were an abridgment of the corresponding rule; — in the compass of a single term, it serves to convey for some particular present use, to a mind already in possession of the rule, the essence of it: it is to the rule, what the essential oil is to the plant from which it is distilled.<br />
So it does but answer this purpose, its uses are great and indisputable.<br />
1. It saves words, and thereby time.<br />
2. By consisting of nothing more than a single term, and that term a noun-substantive, it presents an object which, by an apt assortment of other words, is upon occasion capable of being made up into another proposition.<br />
So, it is true, may a rule — but only in a form comparatively embarrassing and inconvenient. This will appear by taking in hand any sentence in which a principle has place, and instead of the principle employing the corresponding rule.<br />
Upon occasion, into any one sentence principles in any number may be inserted: and the greater the number, the stronger will be the impression of the embarrassment saved by the substitution of the principles to the rules.<br />
A principle, as above, is no more than a single term; but that term may as well be composite, a compound of two or more words, as single. Of these words one must be a noun-substantive; the other may be either a noun-adjective or a participle; including under the appellation of a noun-adjective, a noun-substantive employed in that character, in the mode which is so happily in use in the<br />
English language, and which gives it, in comparison with every language in which this mode is not in use, a most eminently and incontestably useful advantage.<br />
By an axiom is meant a sort of rule, of which by certain properties, the combination of which is peculiar to it, the usefulness is pre-eminent in comparison with other rules. These properties are —<br />
1. Incontestableness.<br />
2. Comprehensiveness.<br />
3. Clearness.<br />
As to axioms, the axioms that belong to this subject are axioms of mental pathology. The facts they are enunciative of, are facts enunciative of certain sensations, as being produced by certain events or states of things operating as their efficient causes.<br />
By a reason for any act, is conveyed the idea of its supposed addition, actual or probable, to the greatest happiness. This effect maybe produced either—1. Immediately; 2. Through an intervening chain of any number of links.<br />
A law is a word employed in three different senses, which require to be distinguished: but in each of them it imports that the will to which it gives expression either emanates from the supreme authority in the state, or has that same authority for its support.<br />
In one sense it denotes an entire command,— the whole matter of a command. Call this the integral sense, and the sort of law a complete law.<br />
In the second sense it contains no more than a portion of a command; and the matter of the command may be to an indefinite ex-tent voluminous, containing laws of the first-mentioned sort in any number : in this sense it has for its synonym the word enactment: call the law in this sense a fractional or incomplete law.<br />
In the third sense it designates the aggregate body of the enactive paragraphs to which it happens to have received the token of their being expressive of the will of the person or persons invested with the supreme authority in the political state, or of some person who acts in this behalf, under, and by virtue of that same authority.<br />
By power of classification a species of legislative power is exercised. Thus when an enactment to any effect has been framed, if by any proposition bearing the form of a command or a rule, enlargement or retrenchment is applied to the genus, or say class of objects which contribute to constitute the subject-matter of the command;—by this means, in a sort of indirect way, by and with the help of the other words which enter into the composition of the enactment, is produced the effect of a different enactment: one of the classes of which that same subject-matter is composed receives thereby contraction or enlargement, and a fresh classification is made thereby.<br />
Note here—in the giving existence to an enactment, three distinguishable parts are capable of being taken—or say, functions are capable of being performed; viz. the institutive, the constitutive, and the consummative; and this whether by one and the same authority, or by so many different authorities: by exercise given to the power of classification in any instance, a different consummation as it were is given to the several enactments, in the matter of which, the generic words in question are any of them contained.<br />
Of this same function—of this same power, exercise is made by any functionary, or set of functionaries, belonging to a department other than, and thence inferior to, the legislative ; for in no other way can classes be filled up by individuals, and reality given to general ideas. Call this power, power of location, or say locative power. But what difference there is between this case and the preceding consists in this: in the former case, by no other authority than the legislative can the power be exercised—the effect produced: in the latter case it is produced in virtue of a general authorization given by the legislative authority, and by that authority is never produced, unless it be in consequence of some extraordinary occurrence.<br />
So much for particular laws, and small masses of particular laws. Now for the divisions of the all-comprehensive aggregate in which they are all of them at all times comprised.<br />
The Pannomion may be considered as composed of two branches—the effective and the constitutive. (It may also be considered as divided into substantive and adjective. The substantive branch of the law has for its business the giving direction and effect to human conduct; — the adjective has for its business the giving execution and effect to substantive law)<br />
In the effective branch may be considered as contained the portion of the matter which is more immediately occupied in giving direction to the conduct of the members of the community of all classes.<br />
The constitutive is occupied in determining who those persons in particular are, by whom the powers belonging to the effective branch shall be exercised.<br />
Considered with relation to its connexion with good and evil employed in the character of punishment and reward for the purpose of giving direction to human conduct, the Pannomion is distinguished and divided into two branches—the directive and the sanctionative.<br />
By the directive part, indication is given of the course which it is the desire of the law-giver that upon the occasion in question the subject-citizens should pursue.<br />
By the sanctionative part, information is given to them of the inducement which they will find for the pursuing of those same courses.<br />
The matter, of which this inducement is composed, is either the matter of good as above, or the matter of evil. Where and in so far as it is of the matter of good, remunerative is the name that may be given to the law: where and in so far as it is the matter of evil, penal is the name commonly given to the law—punitive, a name that may be given to it.<br />
These two branches of a law are addressed to different descriptions of persons; — the directive to persons at large — the sanctionative to the members of the official establishment.<br />
By the sanctionative, provision is made of the inducement, to which the legislator trusts for the compliance he seeks and expects to find on the part of those to whom the directive branch of the law is addressed. This inducement is the eventual expectation of either good or evil in the mind of those to whom the directive branch of the law is addressed: — if it be good, the law in that branch of it is syled a remunerative law: if evil a penal law.<br />
The persons to whom a remunerative law is addressed are those functionaries belonging to the administrative department, by whom disposal is made of the money, or whatever else the matter of good employed consists of, directing them eventually to bestow the article in question on the person in question in the event of his having complied with the directive law in question, and thereby rendered the service desired at his hands.<br />
The persons to whom a penal law is ad-dressed, are the official persons belonging to the judiciary department, presided over and directed by the judges.<br />
Of the matter to which it may be convenient to give insertion in the civil code, and to which accordingly insertion is given in it, there are two different sorts: one of which maybe styled the directive as above — the other the expositive.<br />
To the directive belongs that sort of matter, of which, under that name, mention has been already made — the directive, without the addition of the sanctionative, and in particular the punitive.<br />
Not that, without the addition of the sanctionative, the directive could in general without absurdity be trusted to. Of a correspondent eventual punishment, including, where applicable, satisfaction, to be administered in case of non compliance, the existence must all along thereby be assumed. But in relation to punishment, this is the whole of that which naturally here finds its place: — in the penal code will be inserted all denunciation of extra punishment, together with what belongs to the mode in which the application made of the matter of punishment is brought about; —leaving to the civil code, the direction of the mode in which satisfaction, and in particular that branch of it which consists in the allotment of compensation for wrong, shall be administered.<br />
The expositive matter belongs in common to, constitutes and forms part and parcel of, the directive part of the matter of the civil code, and the penal code.<br />
Among the words and locutions, of which exposition is given in it, may be seen this or that word, in the exposition of which a prodigious quantity of matter is employed.<br />
Take, for instance, the word title or the .word right, when employed as synonymous with and equivalent to it. Exposition of it is alike necessary to the completion of any enactment belonging either to the civil or the penal code.<br />
Take, in the first place, the civil. The principal part of it is occupied in the declaration of to what person or persons each subject-matter of property, each object of general desire, shall belong, in such sort as to be styled his or their own — who he is or they are, to whom it belongs—or say, who have title to it. Now, then, be the subject-matter what it may — who is it that has title to it ? Who but he in whose favour some one in the list of completely collative events or states of things has place ; no event or state of things having, with relation to that same title, an ablative effect, having at the same time place in the disfavour of that same individual.<br />
So much for the portion in question — the portion of the matter of the civil code.<br />
But not less necessary is reference made in the penal code to that same matter.<br />
Take, for instance, in offences severally considered, offences affecting property, — the offence of theft. To the conveying of an accurate conception of the nature of this offence, mention of title is indispensable. Why? Answer: Because, when it is under the persuasion of his having a title to the thing in question, where it is under this persuasion that the man took it, — by no one will he be regarded as having committed the offence thus denominated: thence so it is, that in any well-adapted definition of this offence, averment of the non-existence of any such persuasion must be contained.<br />
Not that in the idea of the offence it is necessary that the idea of any portion of that same matter in particular — the idea, for ex-ample, of any one collative event more than another — should have place.<br />
Merely expositive, and mixed: of the one sort or the other will be found to be every particle of the matter which will with most convenience be aggregated to the matter of the civil code.<br />
Constitutive of the mixed matter will be — 1. Matter of general concernment; 2. Matter of particular concernment.<br />
<br />
CHAPTER III.<br />
EXPOSITIONS.<br />
ONLY with reference to language can the attribute denoted by the word universal be with propriety attributed to the subject of law.<br />
In each country, at each point of time, it is matter of accident whether a law to a given effect is in force; though, consideration had of the general effect, and not of the particular tenor, in no inconsiderable quantity, masses of the matter of law might be found, such as are not likely to be wanting in any country that has the use of letters. A mass of the matter of language expressive of law might be found, of which the equivalent cannot be wanting, in any country, among any assemblage of human beings, in the presence of each other, for any considerable length of time. This may be styled the language of universal law.<br />
Follows the exposition of some of these terms, the use of which exposition upon this occasion is not so much to teach as to fix their import: —<br />
1. Obligation. — Obligations may exist<br />
without rights; —rights cannot exist without obligations.<br />
Obligation—a fictitious entity, is the pro-duct of a law — a real entity.<br />
A law, when entire, is a command; but a command supposes eventual punishment; for without eventual punishment, or the apprehension of it, obedience would be an effect without a cause.<br />
Reward — eventual reward, is not capable of securing obedience to will signified, — is not capable of giving to will the effect of a command: — apprehension of the abstraction of reward already in possession or expectancy may do it. Yes: but though reward alone be the word employed in the description of the case, the operation signified is of the nature of punishment; — the effect of it not enjoyment, but suffering.<br />
Obligation has place, when the desire on the part of the superior, the obliger, being signified to the obligee, be understands at the same time, that in the event of his failing to comply with such desire, evil will befal him, and that to an amount greater than that of any evil which he could sustain in compliance with that desire.<br />
2. Right. — Otherwise than from the idea<br />
of obligation, no clear idea can be attached to<br />
the word right.<br />
The efficient causes of right are two: —<br />
1. Absence of correspondent obligation. You have a right to perform whatever you are not under obligation to abstain from the performance of. Such is the right which every human being has in a state of nature.<br />
2. The second efficient cause of right is, presence of correspondent obligation. This obligation is the obligation imposed upon other persons at large, to abstain from disturbing you in the exercise of the first-mentioned sort of right. The first-mentioned right may be termed a naked kind of right; — this second-mentioned right, a vested or established right.<br />
The word right, is the name of a fictitious entity: one of those objects, the existence of which is feigned for the purpose of discourse, by a fiction so necessary, that without it human discourse could not be carried on. [Though fictitious, the language cannot be termed deceptions in intention at least, whatsoever in some cases may without intention be the result]<br />
A man is said to have it, to hold it, to possess it, to acquire it/ to lose it. It is thus spoken of as if it were a portion of matter such as a man may take into his hand, keep it for a time and let it go again. According to a phrase more common in law language than in ordinary language, a man is even spoken of as being invested with it. Vestment is clothing: invested with it makes it an article of clothing, and is as much as to say is clothed with it.<br />
To the substantive word are frequently prefixed, as adjuncts and attributives, not only the word political, but the word natural and the word moral: and thus rights are distinguished into natural, moral, and political.<br />
From this mode of speech, much confusion of ideas has been the result.<br />
The only one of the three cases in which the word right has any determinate and intelligible meaning is that in which it has the adjunct political attached to it: in this ease, when a man is said to have a right (mentioning it), the existence of a certain matter of fact is asserted ; namely, of a disposition on the part of those by whom the powers of government are exercised, to cause him, to possess and so far as depends upon them to have the faculty of enjoying, the benefit to which he has a right. If, then, the fact thus asserted be true, the case is, that amongst them they are prepared on occasion to render him this service: and to this service on the part of the subordinate functionaries to whose province the matter belongs, he has, if so it be, a right; the supreme functionaries being always prepared to do what depends upon them to cause this same service to be rendered by those same subordinate functionaries.<br />
Now, in the case of alleged natural rights, no such matter of fact has place — nor any matter of fact other than what would have place supposing no such natural right to have place. In this case, no functionaries have place — or if they have, no such disposition on their part, as above, has place; for if it have, it is the case of a political right, and not of a merely natural right. A roan is never the better for having such natural right: admit that he has it, his condition is not in any respect different from what it would be if he had it not.<br />
If I say a man has a right to this coat or to this piece of land, meaning a right in the political sense of the word, — what I assert is a matter of fact; namely, the existence of the disposition in question as above.<br />
If I say a man has a natural right to the coat or the land—all that it can mean, if it mean any thing and mean true, is, that I am of opinion he ought to have a political right to it; that by the appropriate services rendered upon occasion to him by the appropriate functionaries of government, he ought to be protected and secured in the use of it: be ought to be so—that is to say, the idea of his being so is pleasing to me—the idea of the opposite result displeasing.<br />
In the English language, an imperfection, perhaps peculiar to that language, contributes to the keeping up of this confusion. In English, in speaking of a certain man and a certain coat, or a certain piece of land, I may say it is right he should have this coat or this piece of land. But in this case, beyond doubt, nothing more do I express than my satisfaction at the idea of his having this same coat or land.<br />
This imperfection does not extend itself to other languages. Take the French, for instance. A Frenchman will not say, Il est droit que cet homme ait cet habit: what he will say is, Il est juste que cet homme ait cet habit. Cet appartient de droit a cet homme.<br />
If the coat I have on is mine, I have a right by law to knock down, if I can, any man who by force should attempt to take it from me; and this right is what in any case it can scarcely be but that a man looks to when he says, I have a right to a constitution, to such or such an effect—or a right to have the powers of government arranged in such manner as to place me in such or such a condition in respect of actual right, actually established rights, political rights.<br />
To engage others to join with him in applying force for the purpose of putting things into a state in which he would actually be in possession of the right, of which he thus pretends to be in possession, is at bottom the real object and purpose of the confusion thus endeavoured to be introduced into men's ideas, by employing a word in a sense different from what it had been wont to be employed, and from thus causing men to accede in words to positions from which they dissent in judgment.<br />
This confusion has for its source the heat of argument. In the case of a political right, when the existence of it is admitted on all sides, all dispute ceases. But when so it is that a man has been contending for a political right which he either never has possessed, or haying in his possession, if fearful of losing, he will not quietly be beaten out of his claim; but in default of the political right, or as a support to the political right, he asserts he has a natural right. This imaginary natural right is a sort of thread he clings by: — in the case in question, his having any efficient political right if a supposed matter of fact, the existence of the contrary of which is but too notorious; and being so, is but too capable of being proved. Beaten out of this ground, he says he has a natural right—a right given him by that kind goddess and governess Nature, whose legitimacy who shall dispute ? And if he can manage so as to get you to admit the existence of this natural right, he has, under favour of this confusion, the hope of getting you to acknowledge the existence of the correspondent political right, and your assistance in enabling him to possess it.<br />
It may, however, be said, to deny the existence of these rights which you call imaginary, is to give a carte blanche to the most outrageous tyranny. The rights of man anterior to all government, and superior as to their authority to every act of government, these are the rampart, and the only rampart, against the tyrannical enterprises of government. Not at all — the shadow of a rampart is not a rampart; — a fiction proves nothing — from that which is false you can only go on to that which is false. When the governed have no right, the government has no more. The rights of the governed and the rights of the government spring up together; —the same cause which creates the one creates the other.<br />
It is not the rights of man which causes government to be established: — on the contrary, it is the non-existence of those rights. What is true is, that from the beginning of things it has always been desirable that rights should exist — and that because they do not exist; since, so long as there are no rights, there can only be misery upon the earth — no sources of political happiness, no security for person, for abundance, for subsistence, for equality:—for where is the equality between the famished savage who has caught some game, and the still more famishing savage who is dying because he has not caught any ?<br />
Law supposes government: to establish a law, is to exercise an act of government. A law is a declaration of will — of a will conceived and manifested by an individual, or individuals, to whom the other individuals in the society to which such will has respect are generally disposed to obey.<br />
Now government supposes the disposition to obedience: — the faculty of governing on the one part has for its sole efficient cause, and for its sole measure, the disposition to obey on the other part.<br />
This disposition may have had for its cause either habit or convention: a convention announces the will of one moment, which the will of any other moment may revoke; — habit is the result of a system of conduct of which the commencement is lost in the abyss of time. A convention, whether it have ever yet been realized or not, is at least a conceivable and possible cause of this disposition to obedience, from which government, and what is called political society, and the only real laws, result. Habit of obedience is the cause, a little less sure — the foundation, a little less solid, of this useful, social, disposition, and happily the most common.<br />
The true rampart, the only rampart, against a tyrannical government has always been, and still is, the faculty of allowing this disposition to obedience — without which there is no government — either to subsist or to cease. The existence of this faculty is as notorious as its power is efficacious.<br />
Shall this habit of obedience be continued unbroken, or shall it be discontinued upon a certain occasion? Is there more to be gained than to be lost in point of happiness, by its discontinuance? Of the two masses of evil, —intensity, duration, certainty, all included— which appears to be the greatest, that to which one believes one's self exposed from continued obedience, or that to which one believes one's self exposed by its discontinuance?<br />
On which side is the greatest probability of success? On the side of the satellites of the tyrant, who will endeavour to punish me in case of disobedience? or on the side of the friends of liberty, who will rally around me to defend me against oppression?<br />
It is an affair of calculation: and this calculation each one must make for himself according to circumstances. It is also a calculation that no one can fail to make, either ill or well, whatever may be the language he employs, or whosoever he may be.<br />
But this calculation is not sufficiently rapid for those who choose for their amusement the destruction and reconstruction of governments. Rights of men strongly asserted, but ill-defined, never proved; rights of men, of which every violation is an act of oppression — rights ready to be violated at every moment — rights which the government violates every time it does anything which displeases you — right of insurrection ready to be exercised the first moment that oppression occurs; — this is the only remedy which suits those who would make equality to flourish at any rate, by taking the power of governing for themselves, and leaving obedience for all others.<br />
It is the weakness of the understanding which has given birth to these pretended natural rights; it is the force of the passions which has led to their adoption, when, desirous of leading men to pursue a certain line of conduct which general utility does not furnish sufficient motives to induce them to pursue, or when, having such motives, a man knows not how to produce and develope them, yet wishes that there were laws to constrain men to pursue this conduct, or what comes to the same thing, that they would believe that there were such laws, — it has been found the shortest and easiest method to imagine laws to this effect.<br />
Behold the professors of natural law, of which they have dreamed—the legislating Grotii—the legislators of the human race: that which the Alexanders and the Tamer-lanes endeavoured to accomplish by traversing a part of the globe, the Grotii and the Puffendorffs would accomplish, each one sitting in his arm chair: that which the conqueror would effect with violence by his sword, the jurisconsult would effect without effort by his pen. Behold the goddess Nature! —the jurisconsult is her priest; his idlest trash is an oracle, and this oracle is a law.<br />
The jurisconsult in his arm-chair is an individual sufficiently peaceable : he lies, — he fabricates false laws in the simplicity of his heart; — desirous of doing something, ignorant how to do better, hoping to do well, he would not willingly injure any one. From his hands the instruments he employs have passed into hands of a far different temper.<br />
The invention was fortunate: it spared discussion—it saved research and reflection — it did not require even common sense — it spared all forbearance and toleration: — what the oath is on the part of the footpad who demands your purse, the rights of man have been in the mouth of the terrorist.<br />
Those who govern allege legal rights — the rights of the citizen—real rights: those who wish to govern allege natural rights — the rights of man—counterfeit rights—rights which are sanctioned by the knife of the assassin, as well as the gibbet and the guillotine.<br />
Those to whom the faculty of making these imaginary laws, instead of real laws, has been transferred, have not much trouble in making them. Constitutions are made as easily as songs: they succeed each other as rapidly, and are as speedily forgotten.<br />
For the making of real laws, talent and knowledge are requisite: for making real laws good or bad, labour and patience are requisite: but for the making of forgeries sources of the rights of man, nothing more is required than ignorance, hardihood, and impudence.<br />
Rights of men, when placed by the side of legal rights, resemble assignats, whether false or genuine, placed by the side of guineas or Louis dor.<br />
Two passions have laid claim to the giving birth to the declarations of rights—to the substitution, of the declaration of particular rights to the preparation of real laws — vanity and tyranny: vanity, which believes it can lull the world asleep, by being the first to do what all the world has always bad before its eyes — tyranny, glad of finding a pretext for punishing all opposition, by directing against it the force of public hatred. Rights, there you have them always before your eyes: to deny their existence, is either to exhibit the most notorious bad faith or the most stupid blindness; the first a vice which renders you deserving of the indignation of all men—the other a weakness which consigns you to their contempt.<br />
It is because without rights there can be no happiness, that it is at any rate determined to have rights: but rights cannot be created without creating obligations: it is that we may have rights, that we submit to obligations; and in respect to obligations, not to those alone which are strictly necessary for the establishment of the rights of which we feel the want, but also obligations such as those which may result from all the acts of authority exercised by government, which the general habit of obedience allows it to exercise.<br />
The end of all these acts of authority should be to produce the greatest possible happiness to the community in question.<br />
This is the true, and the only true end of the laws. Still, of the operations by which it is possible to conduct men towards this end, the effect— the constant, necessary, and most extensive effect, is to produce evil as well as good; to produce evil, that good may be produced, since upon no other conditions can it be produced.<br />
The mystic tree of good and evil, already so interesting, is not the only one of its kind: life, society, the law, resemble it, and yield fruits equally mixed. Upon the same bough are two sorts of fruits, of which the flavour is opposite — the one sweet and the other bitter.<br />
The sweet fruits are benefits of all kinds — the bitter and thorny fruits are burthens. The benefits are rights, which under certain circumstances are called powers—the burthens are obligations — duties.<br />
These products, so opposed in their nature, are simultaneous in their production, and in-separable in their existence. The law cannot confer a benefit, without at the same time imposing a burthen somewhere; —it cannot create a right, without at the same time creating an obligation — and if that right be of any value, even a numerous train of obligations.<br />
But if among these moral as well as among physical products, the sweet cannot exist without the bitter,—the bitter can exist — it exists too often — without the sweet. Such is the case with those obligations which may be called pure or barren, which are not ac-companied by rights, those benefits, those advantages, which sweeten and conceal the bitterness: — obligations which are fulfilled by useless efforts or sufferings, the fruit of every law produced by tyranny, neglecting or despising the counsels of utility, and yield-to the suggestions of caprice — unless the gratification of this caprice can be considered as a benefit.<br />
Benefits being in themselves good, the well-instructed legislator (I mean, directed by utility) would create and confer them freely with pleasure. If it depended upon himself, he would produce no other fruits: if he could produce them in infinite quantity — he would accumulate them in the bosom of society; but as the inexorable law of nature is opposed to this course, and he cannot confer benefits without imposing burthens, all that he can do is to take care that the advantage of the benefit exceed the disadvantage of the burthen, and that this advantage be as great, and the disadvantage as small, as possible.<br />
When, in order that a burthen may produce its effect—that the advantage expected from it may be produced, it is necessary that its weight be felt, it is called punishment.<br />
It is thus that the non-penal branch of the law and the penal are both of them occupied in the establishing and securing every man in possession of his rights of all sorts. These rights are so many instruments of felicity — they are the instruments of whatsoever felicity a man can derive from government.<br />
A man's political rights are either his private rights, or his constitutional rights. Under every form of government, every man has his private rights; — but there are forms of government, in which no man but one, or some other comparatively small number, have any constitutional rights.<br />
Of private rights these five sorts have been distinguished: — 1. Rights as to person; 2. Rights as to property; 3. Rights as to power; 4. Rights as to reputation; 5. Rights as to condition in life.<br />
All these rights have for their efficient cause certain services, which by a general and standing disposition on the part of the functionaries of government in the supreme grade are understood to have been rendered to every man, and which, in consequence, on each particular occasion the functionaries of judicature, and upon occasion the functionaries belonging to the army, hold themselves in readiness to render to him. These services consist in the giving execution and effect to all such ordinances of the government as have been made in favour and for the benefit of every individual situated in the individual situation in which in all respects he is situated.<br />
In virtue and by means of that same standing and all-comprehensive service, the supreme rulers have given the name of wrong, and the name, quality, and consequence of an offence, to every act by which any such right is understood to have been broken, infringed, violated, invaded. In giving it the name of an offence, they have made provision of pain under the name of punishment, together with other means of repression, for the purpose of preventing the doing of it, or lessening as far as may be the number of instances in which it shall be done.<br />
Rights are, then, the fruits of the law and of the law alone. There are no rights without law — no rights contrary to the law — no rights anterior to the law. Before the existence of laws there may be reasons for wishing that there were laws —and doubtless such reasons cannot be wanting, and those of the strongest kind; — but a reason for wishing that we possessed a right, does not constitute a right. To confound the existence of a reason for wishing that we possessed a right, with the existence of the right itself, is to confound the existence of a want with the means of relieving it. It is the same as if one should say, everybody is subject to hunger, and therefore everybody has something to eat<br />
There are no other than legal rights;—no natural rights — no rights of man, anterior or superior to those created by the laws. The assertion of such rights, absurd in logic, is pernicious in morals. A right without a law is an effect without a cause. We may feign a law, in order to speak of this fiction—in order to feign a right as having been created; but fiction is not truth.<br />
We may feign laws of nature — rights of nature, in order to show the nullity of real laws, as contrary to these imaginary rights; and it is with this view that recourse is had to this fiction:—but the effect of these nullities can only be null.<br />
3. Possession. — “Better,” says a maxim of the old Roman, called civil law—"better (meaning in comparison with that of any other person,) is the condition of the possessor"— better his condition, that is to say, better the ground and reason which a person in his situation is able to make for the enjoyment of the thing, than any that can be made by anyone else.<br />
Of the propriety and reasonableness of this notion, scarcely by anyone who hears of it, how far so ever from being learned, can a sort of feeling fail of being entertained—by no one, even of the most learned, has expression, it is believed, been ever given to it. This omission the greatest-happiness principle and that alone, can supply. In the case of loss of the possession, he who has the possession would feel a pain of privation — or say, regret, more acute—than a man of the same turn of mind, whose expectation of obtaining it was no stronger than the possessor's expectation of keeping it, would, in the event of his failing to obtain possession of it<br />
Of so many hundred millions of persons, each of whom, in case of his having had pos-session of the thing and then lost it, would upon the losing of it have felt pain in a certain shape proportioned to the value of the thing, not one feels pain in any shape at the thoughts of not having it: not one of them but might, in the shape in question, feel pain in any quantity more or less considerable, if after having the thing in possession, he were, without receiving or expecting any equivalent for it, to cease to have it<br />
The horse you have bred, and still keep in your stable, is yours. How is it constituted such — constituted by law? Answer: The naked right— the right of making use of it, the law has left you in possession of; — to wit, by the negative act of forbearing to inhibit you from using it: the established right, the law has conferred upon you by the order given to the judge to punish every person who shall disturb or have disturbed you in the use of it.<br />
The horse which was yours, but by the gift you have made of it is become the horse of a friend of yours,'— how has it been constituted such — constituted by law? Answer: By a blank left as it were in the command to the judge,—that blank being left to be filled up by you in favour of this friend of yours, or any other person to whom it may happen to be your wish to transfer the horse, either gratuitously or for a price.<br />
So long as the law in question has this blank in it, it is an incompleted, an imperfect law — it waits an act on your part to render it a perfect one. The law in its completed state is the result of two functions, into which the legislative function in this case is divided — the initiative to it, and the consummative. By the legislator, the initiative is exercised — by you, the consummative.<br />
In the same way in which, according to this example, rights and powers are given to individual persons, they may be and are given to classes of persons. On classes of persons, the correspondent obligations not only may, but must be imposed: in short, exceptions excepted, they must be imposed on all persons of all classes; — for supposing but a single person excepted from the obligation, your right is not entire, — it is shared by you with the person so excepted. If, for example, in transferring the horse to your friend, you kept yourself from being included in the obligation to abstain from the use of the horse — if, in a word, you kept yourself excepted from the obligation imposed on other persons in general, the horse is not your friend's alone, any more than yours; but, in the language of English law, you and he are joint tenants of the horse.<br />
4. Power. — In common speech, the word power is used in two senses; — to wit, the above sense, which may be-called the proper and legal sense—and another sense more ample, which may be styled the popular sense.<br />
In the strictly legal sense, which is used in the penal and civil branches of law — in the popular sense, which is used in the constitutional branch.<br />
In both cases, the fruit of the exercise of the power is looked to, and that fruit is compliance : on the part of the person subject to power, compliance with the wishes expressed, or presumed to be entertained, b v the person by whom the power is possessed. For convenience of discourse, say in' one word the power-holder.<br />
The force of the remunerative sanction, it has above been observed, is not sufficient to constitute an obligation; it is, however, in a certain sense, sufficient, as everybody knows, to constitute power: the effect of power is produced, in so far as, by the will declared or presumed of him who in this sense is the power-holder, compliance is produced.<br />
Power may be defined to be the faculty [In this form, the exposition is of the sort styled definition, in the narrowest sense of the word, — definitio per genua et differentiam: — exposition effected by indication given of the next superordinate class of objects in which the object in question is considered as comprehended, together with that of the qualities peculiar to it with reference to the other objects of that same class. The import of the word faculty being still more extensive than that of the word power, as may be seen by its assuming the adjunct passive, the word power is. in a certain sense, not unsusceptible of the definition per genus et differentiam: but to complete the exposition, an exposition by periphrasis may perhaps require to be added] of giving determination either to the state of the passive faculties, or to that of the active faculties, of the subject in relation to and over which it is exercised; — say the correlative subject.<br />
Power is either coercive or allocative.<br />
Coercive power is either restrictive or compulsive.<br />
Of the correlative subject, the passive faculties are either insensitive or sensitive.<br />
If merely insensitive, it belongs to the class of inanimate beings, and is referred to the still more general denomination of things.<br />
If sensitive, to the class of animals.<br />
If the animals of the class in question are considered as belonging to the dais of reasonable beings, the correlative subject is a person — including human beings of both sexes and all ages.<br />
If considered as irrational, it has hitherto by lawyers been confounded with inanimate beings, and comprehended under the denomination of things.<br />
In so far as the power is exercised with effect, the possessor of the power — say the power-holder—may, relation bad to the correlative subject, be termed the director — the correlative subject the directee.<br />
5. Command. — An instrument which as above has been mentioned as necessary to the generation of the fictitious entities, called a right and a power, is, as has been seen, a command. But a command is a discourse, expressive of the wish of a certain person, who, supposing his power independent of that of any other person, and to a certain extent sufficiently ample in respect of the subject-matters — to wit, persons, things moveable and immoveable, and acts of persons, and times— is a legislator;—say a legislator in the singular : for simplicity sake, the case of a division of the legislative power among divers persons or classes of persons, may on this occasion be put aside.<br />
6. Quasi Commands—Now then comes a doubt, and with it a question:—in the state of things you have hitherto been supposing, the law in question is of that sort called statute law: and in the case of statute law the print of a command is sufficiently visible. But obligations are created — rights established, not only by statute law, but by another species of law called common law: Where in this case is the command? — where is the person by whom it has been issued ?—where, in a word, is the legislator? The judge is not a legislator. Far from claiming so to be, he would not so much as admit himself to be so: he puts aside, if not the function, at any rate the name.<br />
Hitherto we have been in the region of realities: we are now of necessity transported into the region of fictions. In the domain of common law, everything is fiction but the power exercised by the judge.<br />
On each occasion the judge does, it is true, issue a command: — this command is his decree; but this decree he on every occasion confesses he would not on any occasion have the power of issuing with effect, were it not for a command, general in its extent, and in such sort general as to include and give authority to this individual decree of his.<br />
To be what it is, a command, general or individual, must be the command of some person. Who in this case is this person? Answer: Not any legislator; for if it were, the law would be a statute law. A person being necessary, and no real one to be found, hence comes the necessity of a fictitious one. The fictitious one, this fictitious person, is called the common Jaw—or more generally, that he may be confounded with the real person in whose image he is made, the law.<br />
To warrant the individual decree which he is about to pronounce, the judge comes out with some general proposition, saying, in words or in effect, thus saith THE LAW. On the occasion of the issuing of this sham law, the pretext always is, that it is but a copy of a proposition, equally general, delivered on some former occasion by some other judge or train of successive judges.<br />
In this proposition there may be or may not be a grain of truth, but whether there be or be not, the individual decree has in both cases alike the effect of a law — of a real law — issued by a legislator avowing himself such, and acknowledged as such.<br />
A command being the generic name of the really existing instrument of power called a law, let a quasi command be the name of that counterfeit instrument feigned to answer the purpose of it, to produce the effects of it, for the purpose of enabling the judge to produce, in the way of exacting compliance, the effect of a law.<br />
Of this appellation the use and need will be seen in the procedure code, on the occasion of the formula called the demand paper, provided for the purpose of giving commencement to a suit in that same code. <br />
Supposing the connexion between a command in the mandatory form, and a proposition in the assertive form, made out and explained: whatsoever proposition would, if emanating from the legislator, have constituted an apposite ground for the demand—to wit, the demand made in the demand paper, elsewhere spoken of — a proposition to that same effect might equally well serve, if stated as being a proposition conformable to the doc-trine of the common law. In the one case, the proposition would be a reality, in the other case a fiction: in the one case, what were the proper words of it could not be a subject-matter of dispute; in the other case it might, and would frequently be the subject-matter of dispute: still, however, in the character of a ground of inference, it would in both cases be equally intelligible.<br />
Be this as it may —not to the plan here proposed would the imperfections of this part of the instrument of demand with propriety be ascribable. The root of the imperfection is in the very nature of the common law. To its supreme inaptitude, by the proposed instrument, such remedy as the nature of the case admitted is applied, and the use thus made of the common law is the result — not of choice, but of unresistible necessity. How sadly inadequate a portion of this fictitious law is, in the character of a succedaneum, to a correspondent and equivalent portion of real law, would on each occasion be visible to every eye; and as often as it came under the eye, so often would the urgency of the demand for the substitution of real to sham law be forced upon the attention. What would be in the power of the legislature to do at any time, and in the compass of a day, is to substitute this plain speaking form of demand to the existing absurd and deceptious one: what it is not in his power to do in the compass of a day, nor perhaps till at the end of some years, is the complete substitution of real to sham and impostor's law, —substitute, and audacious rival of the only genuine law.<br />
<br />
CHAPTER IV.<br />
AXIOMS.<br />
§ 1. Axioms of Mental Pathology — a necessary ground for all legislative arrangements.<br />
BY an axiom of mental pathology, considered as a ground for a legislative arrangement, understand a proposition expressive of the consequences in respect of pleasure or pain, or both, found by experience to result from certain sorts of occurrences, and in particular from such in which human agency bears a part: in other words, expressive of the connexion between such occurrences as are continually taking place, or liable to take place, and the pleasures and pains which are respectively the results of them.<br />
Practical uses of these observations, two: — 1. With regard to pleasures, the learning how to leave them undisturbed, and protected against disturbance — (for as to the giving-increase to them by the power of the legislator to anything beyond a very inconsiderable amount, it is neither needful nor possible) 2. With regard to pains, the learning how on each occasion to minimize the amount of them in respect of magnitude and number — number of the individuals suffering under them — magnitude of the suffering in the case of each individual.<br />
Arithmetic and medicine — these are the branches of art and science to which, in so far as the maximum of happiness is the object of his endeavours, the legislator must look for his means of operation: — the pains or losses of pleasure produced by a maleficent act correspond to the symptoms produced by a disease.<br />
Experience, observation, and experiment— these are the foundations of all well-grounded medical practice: experience, observation, and experiment — such are the foundations of all well-grounded legislative practice.<br />
In the case of both functionaries, the subject-matter of operation and the plan of operation is accordingly the same — the points of difference these: — In the case of the medical curator, the only individual who is the subject-matter of the operations performed by him, is the individual whose sufferings are in question, to whom relief is to be administered. In the .case of the legislator, there are no limits to the description of the persons to whom it may happen to be the subject-matter of the operations performed by him.<br />
By the medical curator, no power is possessed other than that which is given either by the patient himself, or in case of his inability, by those to whose management it happens to him to be subject: — by the legislatorial curator, power is possessed applicable to all persons, without exception, within his field of service; each person being considered in his opposite capacities — namely, that of a person by whom pleasure or pain, or both, may be experienced, and that of a person at whose hands pleasure or pain, or both, may be experienced.<br />
Axioms of corporal pathology may be styled those most extensively applicable positions, or say propositions, by which statement is made of the several sorts of occurrences by which pleasure or pain are or have place in the human body: — as also, the results observed to follow from the performance of such operations as have been performed, and the application made of such subject-matters as have been applied for the purpose of giving increase to the aggregate of pleasure, or causing termination, alleviation, or prevention, to have place in regard to pain.<br />
Axioms of mental pathology may be styled those most commonly applicable propositions by which statement is made of the several occurrences by which pleasure or pain is made to have place in the human mind:—as also, the results observed to follow from the performance of such operations as have been performed, and the application of such subject-matters as have been applied for the purpose of effecting the augmentation of the aggregate of the pleasures, or the diminution of the aggregate of the pains, by the termination, alleviation, or prevention of them respectively, when individually considered.<br />
Security — subsistence — abundance — equality — i.e. minimization of inequality:— by these appellatives, denomination has been given to the particular ends which stand next in order to the universal, and the greatest happiness of the greatest number. This being admitted, these are the objects which will be in view in the formation of the several axioms of pathology which present themselves as suitable to the purpose of serving as guides to the practice of the legislatorial curator.<br />
Unfortunately, on this occasion, the imperfection of language has produced an embarrassment, which it does not seem to be in the power of language altogether to remove: all that can be done, is to lessen and alleviate it. Subsistence—abundance—equality, — these three immediately subordinate ends are conversant about the same matter; to wit, the matter of wealth. But security, besides a matter of its own, is conversant with that same matter, with which, as above, they are conversant; to wit, the matter of wealth: security for the matter of wealth — or say, to each individual, security for that portion of the matter of wealth which at the time in question belongs to him, and is called his. Security is accordingly security against all such maleficent acts by which any portion of the matter of wealth which ought to be at the disposal of the individual in question, is prevented from being at his disposal at the time in question. Now, the not having at his disposal at the time in question a certain portion of the matter of wealth, is indeed one efficient cause of pain to the individual in question, be he who he may, but it is but one out of several In addition to the matter of wealth, sources of pleasure, and of exemption from pain, are certain others which have been found reducible under the following denomitions; to wit, power, reputation, and condition in life: — condition in life, to wit, in so far at, reference had to the individual whose it is, the effect is considered as beneficial — this complex subject-matter including in it the three subject-matters above mentioned — that is to say, the matter of wealth, or in two words, power and reputation.<br />
Correspondent to these several subject-matters of security are so many classes of offences — of maleficent acts, by the performance of which such security is disturbed. Offences affecting property—offences affecting power — offences affecting reputation — offences affecting condition in life.<br />
But all these subject-matters are, with reference to the individual in question, distinct from him, and exterior to him; — and in a more immediate way — and otherwise than through the medium of any of these out-works, he stands exposed to be made to suffer pain, as well of mind as of body, by the agency of every other individual, in whose instance a motive adequate to the purpose of producing an act by which it will be inflicted, has place. Thus, then, in addition to offences affecting property—offences affecting power — offences affecting reputation — offences affecting condition in life, — we have offences affecting person, considered with reference to its two distinguishable parts, body and mind.<br />
So many of these classes of maleficent acts, so many branches of security: in which list, as being the most obviously and highly important, and most simple in the conception presented by it, security against maleficent acta affecting person—more shortly, security for person, presents itself as claiming to occupy the first place; after which, security for property, and so forth, as above.<br />
§ 2. Axioms applicable to Security for Person.<br />
Axioms forming the grounds for such legislative arrangements as have for their object and their justification, the affording security for person against such maleficent acts, to which it stands exposed.<br />
1. The pleasure derivable by any person from the contemplation of pain suffered by another, is in no instance so great as the pain so suffered.<br />
2. Not even when the pain so suffered has been the result of an act done by the person in question, for no other purpose than that of producing it.<br />
Hence, one reason for endeavouring to give security against pain of body or mind, resulting from human agency, whether from design or inattention.<br />
Now, suppose the pain to be the result of purely natural agency, — no human agency having any part in the production of it — no human being deriving any satisfaction from the contemplation of it, — the result is still the same.<br />
Hence one reason for endeavouring to give security against pain of body or mind result-ing from casualty, or as the word is, when the evil is considered as having place upon a large scale, — calamity.<br />
Axiom indicative of the reasons which form the grounds of the enactments prohibitive of maleficent acts, productive of evil, affecting persons — that is to say, either in body or mind — in any mode not comprised in one or other of the modes of maleficence from which the acts constituted offences in and by the penal code receive their denomination, via. Offences produced by the irascible appetite:—<br />
When by one person, without gratification sought other than that derived from the contemplation of suffering in this or that shape, as about to be produced on the part of that other gratification in a certain shape, is accordingly produced in the breast of such evil doer,—call the gratification the pleasure of antipathy satisfied— or of ill-will satisfied.<br />
If this antipathy has had its rise in the conception that by the party in question fsay the victim), evil in any shape has been done to the evil doer, — the pleasure of antipathy gratified takes the name of the pleasure of vengeance—or say revenge.<br />
Axiom. In no case is there any reason for believing that the pleasure of antipathy gratified is so great as the pain suffered by him at whose expense, as above, the pleasure is reaped.<br />
Offences to which the axiom applies are — 1. Offences affecting body; 2. Offences affecting the mind other than those belonging to the other classes; 3. Offences affecting reputation—the reputation of the sufferer— other than those by which the reputation of the evil doer is increased; 4. Offences affecting the condition in life of the sufferer, other than those by which the reputation of the evil doer is increased or expected to be increased.<br />
For justification of the legislative arrangements necessary to afford security against maleficent acts affecting the person, what it is necessary to show is, that by them pain will not be produced in such quantity as will cause it to outweigh the pleasure that would have been produced by the maleficent acts so prevented.<br />
For this purpose, in order to complete the demonstration and render it objection-proof, in certain cases, it will be necessary to take into account not only the evil of the first order, but the evil of the second order likewise.<br />
First, then, considering the matter on the footing of the effects of the first order on both sides,—Axioms bearing reference to the effects of the first order on both sides, are the following: —<br />
Axioms serving as grounds and reasons for the provision made by the legislator for general security; — to wit, against the evils respectively produced by the several classes and genera of offences.<br />
Case 1. An offence affecting person, or say corporal vexation, in any one of its several shapes — offender's motive, ill-will or spite<br />
— the enjoyment of the offender will not be so great as the evil of the first order, consisting in the suffering experienced by the party vexed.<br />
Case 2. So if the offence be an offence productive of mental vexation — and the motive the same.<br />
Case 3. So if the offence be an offence affecting reputation.<br />
Case 4. So, exceptions excepted, in the case of every other class or genus of offences, the motive being ill-will or spite, as above.<br />
Case 5. Exceptions are among offences affecting person and reputation jointly, the offences having for their motive sexual desire; to wit—I. Sexual seduction, allurative, or say enticitive; 2. Sexual seduction compulsory ; 3. Rape; 4. Vexatious lascivious contrectation.<br />
In any of these cases, what may happen is — that the enjoyment of the offender may be equal or more than equal to the suffering of the party wronged; in either of which cases the evil of the first order has no place. But to all other persons, the suffering of the one part will present itself as being to an indefinite degree greater than the enjoyment of the offender and proportioned to the apparent excess will be the actual' alarm on the part and on behalf of persons exposed to the like wrong from the same cause: and thence, so far as regards alarm, will be the evil of the second order.<br />
Addendum to security axioms: — Be the modification of the matter of prosperity what it may, by losing it without an equivalent, a man suffers according to, and in proportion to, the value of it in his estimation— the value by him put upon it.<br />
Value may be distinguished into —1. General, or say value in the way of exchange; and 2. Special, or say idiosyncratical — value in the way of use in his own individual instance.<br />
Note, that the value of a thing in the way of exchange arises out of, and depends altogether upon, and is proportioned to, its value in the way of use :—for no man would give anything that had a value in the way of use in exchange for anything that had no such value.<br />
But value in the way of use may be distinguished into general, which has place so far as, and no further than, the thing is of use to persons in general—and special or idiosyncratical, which has place in so far as, in the case of this or that person in particular, the thing has a value in the way of use over and above the value which it has in the case of persons in general: of which use, that of the pretium affectionis, the value of affection, is an example.<br />
Definition: When from any cause—human agency or any other—a mass of the matter of wealth, or of the matter of prosperity in any other shape, is made to go out of an individual's possession or expectancy without his consent, the pain produced in his breast by contemplation of its non-existence, or say by the loss of it, call the pain of disappointment: he being disappointed at the thought of the good which, it having been in his possession or expectancy, he has thus lost.<br />
Among the objects of law in every community, is the affording security against this pain in this shape.<br />
Axiom : The pleasure of antipathy or revenge produced in the breast of the evil-doer by the contemplation of a pain of disappointment produced in the breast of the sufferer, is not in any case so great in magnitude as that same pain.<br />
To this axiom corresponds, as being thereon grounded, a fundamental principle entitled the disappointment-preventing principle.<br />
Operation necessary for the establishment and continuance of security, — Fixation of the text of the laws.<br />
For leading expectation, the law need only be exhibited, provided that it be clear, and not too vast for comprehension. But that it may be exhibited, it is necessary that it exist. The greatest and most extensive cause of regret respecting English law, is, — that as respects a large portion, it has no existence. Instead of laws, it cannot even be said that we possess shadows of law: — shadows imply substances by which they are formed; — all that we possess is a phantom, conjured up by each one at his pleasure, to fill the place of the law. It is of these phantoms that common law, unwritten, judge-made law, is composed.<br />
A discussion upon a point of unwritten or common law has been defined a competition of opposite analogies. In giving this definition, the most severe and well-deserved censure was passed both upon this species of law, and upon the carelessness of the legislators who have tolerated its pernicious existence — who have allowed the security of their fellow-citizens to remain without foundation, tossed about by the interminable and always shifting competition of opposite analogies, — who have left it upon a quicksand, when they might have placed it upon a rock.<br />
§ 3. Axioms pathological, applicable to Subsistence.<br />
Axiom 1. Though to each individual his own subsistence be, by the nature of man, rendered the chief object of his care, and during his infancy an object of care to the author of his existence, yet a considerable portion of the aggregate number of the members of the community there will always be, in whose instance a subsistence cannot have place (without the legislator's care) without provision made by the legislator to that effect.<br />
2. For the subsistence of all, and accordingly of these, provision will to a certain degree have been made by the provision for security in all its shapes, and for security of property in particular: as also for abundance; for abundance, because of the abundance possessed by some is composed a stock, a fund, out of which matter is capable of being taken applicable to the purpose of affording, whether immediate or through exchange, subsistence to others. But for the subordinate end to the purpose here in question, the utmost of what can be done for these two other subordinate ends, taken together, will not of itself be sufficient.<br />
Of the nonpossession of the matter of subsistence in such quantity as is necessary to the support of life, death is the consequence: and such natural death is preceded by a course of suffering much greater than what is attendant on the most afflictive violent deaths employed for the purpose of punishment.<br />
Rather than continue to labour under this affliction, individuals who are experiencing it will naturally and necessarily, in proportion as they find opportunity, do what depends upon them towards obtaining, at the charge of others, the means of rescuing themselves from it: and in proportion as endeavours to this purpose are employed, or believed to be intended to be employed, security for property is certainly diminished — security for person probably diminished on the part of all others.<br />
By the coercive authority of the legislator provision cannot be made for the indigent, otherwise than by defalcation from the mass of the matter of abundance possessed by the relatively opulent, nor yet, without a correspondent defalcation more or less considerable, from security for property on their part.<br />
In every habitable part of the earth, people, so soon as they behold themselves and their eventual offspring secured against death for want of the matter of subsistence, which security cannot be afforded otherwise than by correspondent defalcation from the matter of abundance in the hands of the relatively opulent, will continue to effect addition to the number of its inhabitants. But this augmentation thus produced will proceed with much greater rapidity than any addition that can be made to the quantity of the matter of subsistence possessed, as above, by the indigent, by defalcation made at the expense of security for property, as well as from the matter of abundance, by correspondent defalcation from the matter of abundance in the hands of the relatively opulent.<br />
The consequence is, that sooner or later, on every habitable part of the earth's surface, the community will be composed of three classes of inhabitants: — 1. Those by whom, with the addition of more or less of the matter of abundance, the matter of subsistence is possessed in a quantity sufficient for the preservation of life and health; — 2. Those who, being in a state in which they are perishing for want of the matter of subsistence, are on their way to speedy death; — 3. Those who to save themselves from impending death are occupied in waging war upon the rest, providing the means of subsistence for them-selves at the expense of the security of all, and the matter of subsistence and abundance in the possession of all.<br />
So long as by arrangements taken for the purpose by government, the thus redundant part of the population can be cleared off by being conveyed from the habitable part of the globe in question to some other part, these two classes of quickly perishing individuals may be prevented from receiving formation, or if formed, from receiving increase. But in no one part of the habitable globe can this be done by government without expense, nor the matter of expense be obtained without defalcation made from security, and suffering from loss, by forced contribution as above ; and sooner or later, in proportion as property and security for property establishes itself, the whole surface of the habitable globe cannot but be fully peopled, in such sort, that from no one spot to any other could human creatures be transplanted in a living and about to live state.<br />
Human benevolence can, therefore, hardly be better employed than in a quiet solution of these difficulties, and in the reconciliation of a provision for the otherwise perishing indigent, with this continual tendency to an increase in the demand for such provision.<br />
§ 4. Axioms applying to Abundance.<br />
1. Included in the mass of the matter of abundance, is the mass of the matter of subsistence. The matter of wealth is at once the matter of subsistence and the matter of abundance : the sole difference is the quantity; — it is less in the case of subsistence — greater in the case of abundance.<br />
2. If of two persons, one has the minimum of subsistence without addition, — and the other, that same minimum with an addition, — the former has the matter of subsistence, the latter the matter of abundance: — under-stand, in comparison with him who has no-thing beyond the minimum of the matter of subsistence, — the term abundance being a comparative, a relative term.<br />
3. The matter of subsistence being, in the instance of each individual, necessary to existence, and existence necessary to happiness, — suppose a quantity of the matter of wealth sufficient for the subsistence of 10,000 persons, at the disposition of the legislator; — more happiness will be producible, by giving to each one of the 10,000 a particle of the matter of subsistence, than by giving to 5000 of them a portion of the matter of abundance composed of two particles of the matter of subsistence, and then giving none to the remaining 5000: since, on that supposition, the 5000 thus left destitute would soon die through a lingering death.<br />
4. But suppose that, after giving existence to the 10,000, and to each of them a particle of the matter of subsistence, the legislator have at his disposal a quantity of the matter of wealth sufficient for the subsistence of other 10,000 persons, and that he have the option — of either giving existence to an additional number of persons to that same amount, with a minimum of the matter of subsistence to each, — or instead, without making any addition to the first 10,000, of giving an addition to the quantity of wealth possessed by them, — a greater addition to the aggregate quantity of happiness would be made by dividing among the first 10,000 the whole additional quantity of wealth, than by making any addition to the number of persons brought into existence. For, supposing the whole 10,000 having each of them the mini-mum of the matter of subsistence on any given day, — the next day, in consequence of some accident, they might cease to have it, and in consequence cease to have existence: whereas, if of this same 10,000, some had, in addition to his minimum of the matter of subsistence, particles one or more of the matter of abundance, here would be a correspondent mass of the matter of wealth, capable of being by the legislator so disposed of as to be made to constitute the matter of subsistence to those who, otherwise being without subsistence, would soon be without existence.<br />
5. Not that, as between the matter of subsistence, and the matter of abundance, the identity is other than virtual — identity with reference to the purpose here in question, to wit, the effect on happiness; — and this virtually depends upon the facility of obtaining one of the sorts of matter necessary to subsistence, in exchange for matter neither necessary, nor so much as contributing to subsistence — potatoes, for example, in exchange for coin; but so far as is necessary to the guidance of the legislator s practice, this virtual identity always has had, and is likely always to have place.<br />
6. Thus it is that the matter of abundance, as contradistinguished from the matter of subsistence, is contributory to happiness, in three distinguishable ways or capacities: — I. As contributing in a direct way to enjoyment, in a degree over and above what could be contributed by the mere matter of subsistence ; 2. As contributing in an indirect way to security, to wit, by its capacity of serving, in the way of exchange, for the obtainment of the efficient instruments of security in any of these shapes; 3. As eventually contributing, in the same indirect way, to subsistence.<br />
§ 5. Axioms applying to Equality [See also Principles of the Civil Code, ch. 6, Vol I. p. 304] in respect of wealth.<br />
I. Case or state of things the first. – The quantities of wealth in question, considered as being in a quiescent state, actually in the hands of the two parties in question: neither entering into, nor going out of the hands of either.<br />
1. Cateris paribus, — to every particle of the matter of wealth corresponds a particle of the matter of happiness. Accordingly, thence,<br />
2. So far as depends upon wealth, — of two persons having unequal fortunes, he who has most wealth must by a legislator be regarded as having most happiness.<br />
3. But the quantity of happiness will not go on increasing in anything near the same proportion as the quantity of wealth : —ten thousand times the quantity of wealth will not bring with it ten thousand times the quantity of happiness. It will even be matter of doubt, whether ten thousand times the wealth will in general bring with it twice the happiness. Thus it is, that,<br />
4. The effect of wealth in the production of happiness goes on diminishing, as the quantity by which the wealth of one man exceeds that of another goes on increasing: in other words, the quantity of happiness produced by a particle of wealth (each particle being of the same magnitude) will be less and less at every particle; the second will produce less than the first, the third than the second, and so on.<br />
5. Minimum of wealth, say £10 per year; — greatest excess of happiness produced by excess in the quantity of wealth, as 2 to 1: — magnitude of a particle of wealth, £1 a year. On these data might be grounded a scale or table, exhibiting the quantities of happiness produced, by as many additions made to the quantity of wealth at the bottom of the scale, as there are pounds between £10 and £10,000.<br />
II. Case, or state of things the second, — the particles of wealth about to enter into the hands of the parties in question.<br />
1. Fortunes unequal:—by a particle of wealth, if added to the wealth of him who has least, more happiness will be produced, than if added to the wealth of him who has most.<br />
2. Particles of wealth at the disposition of the legislator, say 10,000;—happiness of the most wealthy to that of the least wealthy, say (as per No. 5,) as 2 to 1:—by giving to each one of 10,000 a particle of wealth, the legislator will produce 5000 times the happiness he would produce by giving the 10,000 particles to one person.<br />
3. On these data might be grounded a scale, exhibiting the quantities of happiness produced, by so many additions made as above to the minimum of wealth, to the respective happiness of any number of persons, whose respective quantities of wealth exceed one another, by the amount of a particle in each instance.<br />
III. Case, or state of things the third, — the particles of wealth about to go out of the hands of the parties.<br />
1. By the subtraction of a particle of the matter of wealth, a less subtraction from happiness will be produced, if made from the wealth of him who has the matter of abundance, than if from the wealth of him who has the matter of subsistence only.<br />
2. So, if from the wealth of him who has a larger portion of the matter of abundance, than if from the wealth of him who has not so large a portion of the matter of abundance.<br />
3. Fortunes equal, and the aggregate sum subtracted being given, the greater the num-ber of the persons from whose wealth the subtraction is made, the less will be the sub-traction thereby made from the aggregate of happiness.<br />
4. Fortunes unequal, still less will be the subtraction of happiness, if it be in the ratio of their fortunes that the subtraction is made, the greatest quantity being subtracted from those whose fortunes are greatest.<br />
5. A quantity of the matter of wealth may be assigned, so small, that if subtracted from the fortune of a person possessed of a certain quantity of the matter of abundance, no sensible subtraction of happiness would be the result.<br />
6. The larger the fortune of the individual in question, the greater the probability that, by the subtraction of a given quantity of the matter of wealth, no subtraction at all will be made from the quantity of his happiness.<br />
7. So likewise, if the ratio of the sum to be subtracted, to the aggregate mass from which it is to be subtracted, be so great, that by the subtraction of it, subtraction of a quantity, more or less considerable, cannot but be made from the aggregate of happiness. — still the larger, in the case of each individual, the aggregate of wealth is from which the subtraction is made, the less will be the quantity of happiness so subtracted, as above.<br />
IV. Case, or state of things the fourth, — the particles of wealth about to go out of the hands of the one party into the hands of the other.<br />
1. Fortunes equal: — take from the one party a portion of the matter of wealth and give it to the other, — the quantity of happiness gained to the gainer of the wealth will not be so great as the quantity of happiness lost to the loser of the wealth.<br />
2. Fortunes unequal: — the poorer the loser, the richer the gainer: greater in this case is the diminution produced in the mass of happiness by the transfer, than in the last mentioned case.<br />
3. Fortunes again unequal: — the richer the loser, the poorer the gainer: the effect produced on happiness by the transfer may in this case be either loss or gain.<br />
Whether it be the one or the other, will depend partly upon the degree of the inequality, partly upon the magnitude of the portion of wealth transferred. If the inequality be very small, and the wealth transferred also small, the effect produced on the sum of happiness may be loss. But if either be — much more if both be other than, very small, the effect on happiness will be gain.<br />
4. Income of the richer, say £100,000 a-year — income of the less rich, say £99,099 a-year: wealth taken from the first, and transferred to the less rich, £1 a-year: — on the sum of happiness the effect will be on the side of loss; — more happiness will be lost by the richer than gained by the less rich.<br />
Hence one cause of the preponderance produced on the side of evil by the practice called gaming.<br />
5. Income of the richer loser, £100,000 a-year; — income of the less rich gainer, £10 a-year; — wealth lost to the richer, gained by the less rich, £1 a-year: — on the sum of happiness the effect will be on the side of gain. More happiness will be gained by the less rich gainer, than lost by the more rich loser.<br />
Thus it is, that if the effects of the first order were alone taken into account, the consequence would be, that, on the supposition of a new constitution coming to be established, with the greatest happiness of the greatest number for its end in view, sufficient reason would have place for taking the matter of wealth from the richest and transferring it to the less rich, till the fortunes of all were reduced to an equality, or a system of inequality so little different from perfect equality, that the difference would not be worth calculating.<br />
But call in now the effects of the second and those of the third order, and the effect is reversed: to maximisation of happiness would be Substituted universal annihilation in the first place of happiness — in the next place of existence. Evil of the second order, —annihilation of happiness by the universality of the alarm, and the swelling of danger into certainty: — Evil of the third order,—annihilation of existence by the certainty of the non-enjoyment of the fruit of labour, and thence the extinction of all inducement to labour.<br />
Independently of the destruction which would thus be produced by carrying, or even by the known intention of carrying to its utmost possible length the equalization, or say levelling system, as above, diminution would be effected in the aggregate of happiness, by the extinction of tie fund afforded by the matter of abundance for keeping un-diminished the stock of the matter of wealth necessary for subsistence.<br />
On consideration of what is stated above, it will be found that the plan of distribution applied to the matter of wealth, which is most favourable to universality of subsistence, and thence, in other words, to the maximization of happiness, is that in which, while the fortune of the richest — of him whose situation is at the top of the scale, is greatest, the degrees between the fortune of the least rich and that of the most rich are most numerous,—in other words, the gradation most regular and insensible.<br />
The larger the fortunes of the richest are, the smaller will be the number of those whose fortunes approach near to that high level: the smaller, therefore, the number of those from whose masses of property the largest defalcation could by possibility be made : — and, moreover, the larger those masses, the greater would be the difficulty which the legislator would experience as to the obtaining at their charge such defalcation as the nature of the case would not exclude the possibility of making.<br />
Thus, for example, it would, in case of over population, be easier in England, or even in Ireland, to ward off famine for a time, than it would be in British India.<br />
Equality requires, that though it be at the expense of all the other members of the com-munity, the income of those whose income is composed of the wages of labour be maximized. Reason: Of these are composed the vast majority of the whole number of the members of the community.<br />
Exceptions excepted, equality requires that the profits of stock be minimized. Reason: Because the net profit of stock is composed of the mass, or say portion remaining to the employer of the stock, after deduction made of the wages of the labour applied to it.<br />
Exception will be — if this supposed case be really exemplified — where the possessors of the wages of labour are so many, and the possessors of the profits of stock so few, that by a small addition to the one, no sensible defalcation will be made from the other.<br />
§ 6. Axioms relating to Power, Rank, and Reputation.<br />
By axioms relating to power, understand self-serving power, exempt from the obligation by which it is converted into trust.<br />
As between individual and individual, the pleasure to the superior, to the power-holder, from the possession and exercise of the power, is not so great as the pain experienced by the party subjected.<br />
Therefore, only when converted into extra-benefiting by appropriate obligation, can it be conducive to greatest happiness.<br />
The same observations will equally apply to rank, and factitious estimation produced by rank.<br />
So also to extra reputation, or say estimation, unless when acquired by service rendered to others.<br />
The principle corresponding to these axioms, as to equality, is the inequality-minimizing principle.<br />
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Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-50904164530826374112016-05-20T18:25:00.001+01:002019-03-26T06:19:12.222+00:00THE RELATIONS BETWEEN EQUITY AND LAW.<br />
AT the last annual meeting of the Association of American Law Schools, Professor Walter W. Cool( contributed an<br />
interesting address on Equity and its relation to Law. Taking as his more specific subject, "THE PLAcE or EQUITY IN OUR LEGAL SYSTEM," the speaker began his discussion with an extensive quota¬tion from MAITLAND'S LECTURES ON EQUITY,--a work cordially welcomed by that distinguished scholar's many admirers upon its posthumous publication in the fall of 19o9. The latter part of the quotation was as follows :<br />
"I do not think that any one has expounded or ever will expound equity as a single, consistent system, an articulate body of law. It is a collection of appendixes between which there is no very close connection. If we suppose all our law put into systematic order, we shall find that some chapters of it have been copiously glossed by equity, while others are quite free from equitable glosses. * * *<br />
"When. some years ago, the new scheme for our Tripos was settled, we said that candidates for the second part were to study the English Law of Real and Personal Property and the English Law of Contract and Tort, with the equita¬ble principles applicable to these subjects. It was a question whether we ought not to have mentioned equity as a sepa¬rate subject. I have no doubt, however, that we did the right thing. To have acknowledged the existence of equity as a system distinct from law would in my opinion have been a belated, a reactionary measure. I think, for example, that you ought to learn the many equitable modifications of the law of contract, not as part of equity, but as part, and a very important part, of our modern English law of contract."<br />
After quoting these words, Mr. Cool( continued:<br />
"I need not tell you that an examination of the announce¬ments of our American law schools reveals no signs of any disposition to adopt Mr. MAITLAND'S view. We are, in his phraseology, acknowledging the existence of equity as a systern distinct from law, and so are following—if he be right —a 'belated and reactionary' course of procedure. Take up the catalogue of almost any American law school, and what do you find? As a typical example—selected because it is typical, and in no respect whatever exceptional or peculiar—let us read from the catalogue of the Law School of Stanford University:<br />
`Equity I.—Historical development of equity; relation be¬tween equitable rights and powers and legal rights and pow¬ers; general principles relating to jurisdiction, procedure and remedies; specific performance of contracts with special em¬phasis on the relations between vendors and purchasers of realty; introduction to mortgages; bills for an account ; spe¬cific reparation and prevention of torts, including waste, trespass, nuisance, disturbance of easements, infringement of patents and copyrights, interference with business relations.' [Italics are those of present writer.]<br />
* * * "My thesis this evening is that Mr. MAITLAND is right, and that our American treatment of equity is belated and reactionary, because it is unscientific, both from the point of view of analysis and from that of educational ex¬pediency."'<br />
The present writer having been absent from the meeting referred to, he of course missed the opportunity of hearing or discussing the address in which the foregoing appears. That being so, he now takes pleasure in saying, at the very outset, that he finds himself in substantial accord with many of the views expressed by Mr. COOK, and he believes that law teachers are indebted to the learned speaker for a number of helpful suggestions relating to the law school curriculum. At the same time it would seem that. in his enthusiastic conversion to MAITLAND'S views, Mr. Coot( has gone rather far in assuming and asserting that all American law schools have heretofore failed to recognize the fundamental ideas so justly emphasized by the lamented English scholar, and that these schools have hitherto "acknowledged the existence of equity as a system distinct from law."<br />
As the present writer must confess to the authorship of the above-quoted announcement from the Stanford law catalogue—including, of course, the part now italicized—perhaps he will be pardoned for saving that, on reading the report of Mr. CooK's address, he was immediately reminded of certain language used some years ar.o by Professor John C. CRAY in replying to a friendly critic :<br />
"I sincerely approve of my learned friend's general criticism ; that I -do not think his illustration a happy one, is perhaps natural enough. To applaud a sermon, but to believe that one's neighbors need it rather than one's self, is nothing new."2<br />
it so happens that, ever since assuming charge of the above-mentioned course in equity some years prior to the appearance of MAITLAND'S hook,—in connection, more especially, with that part of the course reading "relation between equitable rights and powers and legal rights and powers," etc.,—the present writer, after "de¬veloping" the various points by student discussion of decided cases and historical reading, has been in the habit of using with his classes both an analytical synopsis and a diagrammatic sketch,—each en¬titled "THE POSITION OE EQUITY IN THE LEGAL SYSTEM," and each intended to enforce not only those matters now emphasized by Mr. CooK, but also certain other phases of the subject believed to be in need of recognition and emphasis.3 Some of the fundamental and general problems of equity thus treated—that is, those concerning the complicated relations and delicate interplay of rules of equity and rules of law--while always fascinating to students, are by no means free from intrinsic difficulty. Accordingly, in view of the new interest aroused by Mr. COOK'S address, it has occurred to the writer that the above-mentioned synopsis and the accompanying diagram might not be without interest to some of the readers of this law review, especially as so many of the latter are law school students still actively endeavoring to understand and to solve the wonderful intricacies and problems that for various historical reasons have become imbedded in the Anglo-American dual system of law and equity.<br />
Because of the fact that the latter class of readers are primarily in view, it has seemed best, for the sake of clearness and perspec¬tive, to preserve the analytical and compendious form of presenta¬tion, and to add in "supplemental notes" such historical and ex¬planatory discussions, quotations, and references as might be help¬ful to students of the subject. With the same idea in mind, many additional "examples" have been incorporated in the text in order to indicate more adequately "the conflict between equity and law." The quotations in the supplemental notes are made largely from the standard historical works. Here and there in the notable volumes of POLLOCK & MAITLAND, HOLDSWORTH, KERLY, JENKS and others, there are valuable passages recording and explaining the essential causes underlying the development of equity ; but these are at pres¬ent so scattered among the several works named as to be very inconvenient, if not inaccessible, for the average student. Even with the various quotations and discussions appended, however, the present article is, of course, intended merely as an introductory sketch ; the "filling in" must come from the study and discussion of concrete cases and problems.<br />
Despite what has thus far been said, there would be considerable hesitation in presenting these mere working materials, were it not for those parts relating to "the conflict between equity and law" and "the supremacy of equity over law." It is only in these matters that the writer finds it necessary to take issue with the views ex¬pressed by Professor MAITLAND and other well-known writers. Our distinguished English author, throughout his entertaining ser¬ies of lectures, maintains, with ever-recurring emphasis, that the relation between the rules of equity and the rules of law, with only one or two possible exceptions, "was not one of conflict."4 In order to have an adequate statement of Professor MAITLAND'S views before us, it will be necessary to give a fairly lengthy quotation from his LRCTURES<br />
"Then as to substantive law the Judicature Act of 1873 took occasion to make certain changes. In its 25th section it laid down certain rules about the administration of insolvent estates, about the application of statutes of limitation, about waste, about merger, about mortgages, about the assignment of choses in action, and so forth, and it ended with these words :<br />
`Generally in all matters not hereinbefore particularly men-tioned, in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail.'<br />
"Now it may well seem to you that those are very impor¬tant words, for perhaps you may have fancied that at all mariner of points there was a conflict between the rules of equity and the rules of common law, or at all events a var¬iance. But the clause that I have just read has been in force now for over thirty years, and if you will look at any good commentary upon it you will find that it has done very little —it has been practically without effect. You may indeed find many cases in which some advocate, at a loss for other argu¬ments, has appealed to the words of this clause as a last hope; but you will find very few cases indeed in which that appeal has been successful. I shall speak of this more at large at another time, but it is important that even at the very out¬set of our career we should form some notion of the relation which existed between law and equity in the year 1875. And the first thing that we have to observe is that this relation was not one of conflict. Equity had come not to destroy the law.. but to fulfil it. Every jot and every tittle of the law was to be obeyed, but when all this had been done something might yet be needed, something that equity would require. * * *<br />
"Let me take an instance or two in which something that may for one moment look like a conflict becomes no conflict at all when it is examined. Take the case of a trust. An examiner will sometimes be told that whereas the common law said that the trustee was the owner of the land, equity said that the cestui que trust was the owner. Well here in all conscience there seems to be conflict enough. Think what this would mean were it really true. There are two courts of coordinate jurisdiction—one says that A is the owner, the other says that B is the owner of Blackacre. That means civil war and utter anarchy. Of course the statement is an extremely crude one. it is a misleading and dangerous state¬ment—how misleading, how dangerous, we shall see when we come to examine the nature of equitable estates. Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here. Had there been a conflict here the clause of the Judicature Act which I have lately read would have abolished the whole law of trusts. Common law says that A is the owner, equity says that B is the owner, but equity is to prevail, therefore B is the owner and A has no right or duty of any sort or kind in or about the land. Of course the Judicature Act has not acted in this way ; it has left the law of trusts just where it stood, because it found no conflict, no variance even, be¬tween the rules of the common law and the rules of equity."<br />
The same views seem to have been entertained by Professor LANGDELL, in whose SUMMARY Or EQUITY PLEADING, we find the<br />
following:<br />
"Indeed, it may be said without impropriety that equity is a great legal system, which has grown tip by the side of the common law, and which, while consistent with the latter, is in a great measure independent of it."<br />
<br />
And in the same learned author's BRIEF SURVEY OF EQUITY JUR-<br />
ISDICTION :<br />
"Equity cannot therefore, create personal rights which are unknown to the law * * * nor can it impose upon a person or a thing an obligation which by law does not exist * * *. To say that equity can do any of these things would be to say that equity is a separate and independent system of law, or that it is superior to law."'<br />
So also, similar ideas seem to have been expressed by Mr. ADAMS in his treatise on EQUITY,8 and, perhaps, by Professor Salo-FIELD in his reply to Professor Coox.g<br />
As against the proposition of these various scholars that there is no appreciable conflict between law and equity, the thesis of the present writer is this : while a large part of the rules of equity harmonize with the various rules of law, another large part of the rules of equity—more especially those relating to the so-called exclusive and auxiliary jurisdictions of equity—conflict with legal rules and, as a matter of substance, annul or negative the latter pro tanto. As just indicated, there is, it is believed, a very marked and con¬stantly recurring conflict between equitable and legal rules relating to various jural relations; and whenever such conflict occurs, the equitable rule is, in the last analysis, paramount and determinative. Or, putting the matter in another way, the so-called legal rule in every such case has, to that extent, only an apparent validity and operation as a matter of genuine law. Though it may represent an important stage of thought in the solution of a given problem, and may also connote very important possibilities as to certain other, closely associated (and valid) jural relations, yet as regards the very relation in which it suffers direct competition with a rule of equity, such a conflicting rule of law is, pro tanto, of no greater force than an unconstitutional statute."<br />
If all this be so, it would seem to follow that the brilliant historian's discussion of the eleventh and last subdivision of the 25th section of the Judicature Act of 1873 is inadequate and misleading. If this particular subdivision, considered as an isolated entity, has, as asserted by MAITLAND, "produced very little fruit," one sufficient explanation would be that this last provision was evidently added only out of abundance of caution. Even if it had not been enun¬ciated in ipsissimis verbis, such a provision would have been im¬plicit in the language and intent of the act as a whole. But, more than that, the full content of subdivision II had already been cov¬ered, with explicit and industrious formality, by the seven subdivisions of section 24 and the first ten subdivisions of section 25. Although, in these preceding subdivisions, nothing was said in yen, terms concerning the conflict of law and equity, it is clear that they were intrinsically sufficient for that purpose, and that the fram¬ers of the act thought that they had been regulating precisely that sort of conflict; for do they not say in the final subdivision of section 25:<br />
"Generally in all matters not hereinbe fore particularly men-tioned, in which there is any conflict or variance between the-rules of equity and the rules of the common law with refer¬ence to the same matter, the rules of equity shall prevail."<br />
The reasons already given would seem adequate to explain why subdivision 1 1, considered as a separate entity, has appeared to have so little effect. But, in addition, it is well to remember that the Common Law Procedure Act of 1854, in providing both for equit¬able defenses and for equitable replications had at that comparatively early day brought about a partial "fusion" of law and equity; so that already for two decades prior to their enactment the essential scope and operation of the Judicature Acts, and likewise many of the concrete problems involved, had been made familiar to the bench and bar of England. The fundamental idea of subdivision II of section 25 was anything but a novelty !li<br />
The more concrete presentation of the typical cases of "conflict" between law and equity and the "supremacy" of the latter over the former will be found in the appropriate parts of the analytical synopsis immediately following, and in the supplemental notes relat¬ing thereto.12<br />
This synopsis, intended, as heretofore stated, merely to give the student a concise introduction to the subject of equity, consists of three divisions, namely :<br />
Part I : The Position of Equity in the Legal System. Part II : Historical Sketch of Equity.<br />
Part III: Fundamental Characteristics of Equity.<br />
<br />
PART I.<br />
THE POSITION OF EQUITY IN THE LEGAL SYSTEM.<br />
I. The term "equity" as used in legal discussions is not to be confused with equity in the sense of natural justice; on the contrary the term is em¬ployed to denote a certain division of the law.'<br />
II. Law (in the broad sense) is divisible "vertically" into law, or common law (in the narrow sense) and equity!<br />
A Law, or common law (in the narrow sense), consists of that part of the law (in the broad sense) which has been developed in the so-called courts of law (or common law courts).<br />
B Equity consists of that part of the law (in the broad sense) which has been developed in courts of chancery (or courts of equity).<br />
III. Private law (in the broad sense), including both law and equity, is divisible "horizontally" into the various subjects indicated by the dia¬gram accompanying this outline ;2 this list is not intended to be ex¬haustive.<br />
IV. From the foregoing, it follows that for an adequate treatment of any subject in the law such, e. g., as property, contracts, or torts, it is neces¬sary to consider both the law and the equity relating to such subject.<br />
PART II.<br />
HISTORICAL SKETCH OF EQUITY. General References:<br />
SPME, EQUITABLE JURISDICTION (1846), Vol. I., pp. 321-349• KERLY, HISTORY OF EQUITY (1890), Chapters I.-V.<br />
POLLOCK & MAITLAND, HISTORY OP ENGLISH LAW (2nd ed., 1905), Vol. I., pp. 150-151; 17o-171; 189-197.<br />
HOLDSWORTH, HISTORY OF ENGLISH LAW (1903), Vol. I., pp. 194-263. POLLOCK, THE EXPANSION OP THE COMMON LAW (1904), pp. 53-80; THE SCALES OP JUSTICE.<br />
I. The dual system of law and equity can be understood only by reference to its historical development.<br />
A Such a system was not inherently necessary, as, conceivably, all rules of law (in the broad sense) might have been developed in a single system of courts! (Compare infra, the "fusion of law and equity," part II., H., B.)<br />
B The system is to be accounted for by the incidents of history'<br />
II. Origin and development of equity.<br />
A Earlier development and administration of equity.<br />
r. Courts of equity and their doctrines were made necessary by the <br />
retarded development of the law courts and their doctrines.<br />
a. Characteristic features of the law courts in the latter half of the 13th century, when equity took its origin.<br />
i The king's powers of administering justice: from time immemorial it was the king's prerogative to administer justice to his subjects either in person or by delegation to others.'<br />
ii The king made a partial delegation of judicial power to appointed judges,—the king's courts consisting, in the latter part of the 13th century, of the King's Bench, the Common Bench (or Common Pleas), and the Ex¬chequer.<br />
iii Delegation of such power was made specifically in each case by writ issued from the office of the chancellor in the name of the king.'<br />
iv The case in court had to conform to the writ, the com-mon law judges having final power to quash the writ whenever it was deemed defective or inadequate to cover the facts of the plaintiff's case'<br />
v In the latter half of the 13th century the chancellor's powers of inventing new writs to meet the advancing needs of society received radical checks, and a greatly retarded development of law ensued.'<br />
b. Resultant defects of above system of law courts and their doctrines.<br />
i Defects of substantive law : inadequacy of rights, both pri¬mary and remedial. (This topic to be exemplified in the treatment of the various branches of the law.)<br />
ii Defects of the adjective law : inadequacy of the common law procedure and remedies.'<br />
c. Attempts to remedy these defects.<br />
i Results of legislative action, Statute of Westminster II., 13 Ed. I. (1285), c. I, sec. 24, inadequate."<br />
ii Gradual establishment of new system of courts success¬ful: courts of chancery, or courts of equity.<br />
The •important stages in the earlier development of courts of equity.<br />
a. By reason of his judicial prerogative,—his "residuary juris-diction,"—the king could directly exercise judicial powers in cases where complainants could not, for some reason, gain relief from the ordinary courts."<br />
b. The prerogative jurisdiction was exercised originally by the king himself in conjunction with his select council, consist-of the chancellor, judges, and other high officials.'<br />
c. This extraordinary jurisdiction was gradually delegated to the chancellor and his subordinates.<br />
i The office of chancellor existed before the conquest and was continued by William I.<br />
ii After the conquest the chancellor became the most im-portant officer of the king's government, being his per¬sonal adviser and representative—"the king's secretary of state for all departments."'<br />
iii From early times the "original writs" had been issued from the office of the chancellor;" and by the reign of Edward III, (1326-1377) he had acquired a limited ordinary, or common-law, jurisdiction. This ordinary jurisdiction must be distinguished from his extraordi¬nary, or equitable, jurisdiction."<br />
iv By the reign of Edward I. (1272-1307) cases were oc-casionally referred by the king or the select council to the chancellor for his sole decision, he being specially competent to deal with such cases by reason of his familiarity with legal and judicial matters.<br />
v By the reign of Edward II. (1307-1326) such reference was very common; and by the reign of Edward III. (1326-1377) the chancery was regarded, in some meas¬ure, as a regular court.<br />
vi In 1349 Edward III., by a general writ addressed to the sheriff of London, directed that petitions relating to the grant of the king's grace should be brought before the chancellor or the keeper of the privy seal.<br />
vii For a long time, however, the judicial functions of the chancellor and those of the council continued to be closely associated; and not until the latter part of the 15th century did the equitable jurisdiction become ex¬clusively that of the chancellor."<br />
viii The struggle for supremacy between the court of chancery and the courts of law was marked, from the beginning of the reign of Richard II. (1377-1399), by numerous petitions presented by the Commons against alleged abuses on the part of the chancellor; and by various Acts of Parliament recognizing his jurisdiction and to some extent regulating it,—more especially the Stat. 4 Hen. IV. (1403), c. 8 and the Stat. 4 Hen. IV. (1403), c. 23.'T<br />
ix The supremacy of the court of chancery in relation, more especially, to the granting of injunctions against the bringing of actions and the enforcing of judgments at law was settled when, after the notable controversy between Lord Chancellor ELLSMERE and Chief Justice Cola, James I., by •a prerogative decree issued in 1616, upheld the jurisdiction of the chancellor."<br />
B Later development and administration of equity: the "fusion of law and equity." (Compare supra, Part IL, I., A.)<br />
r. In the rgth century radical changes were made in the adminis-tration of equity and law.<br />
2. In regard to substance, as distinguished from form, these changes in administration have not, for the most part, modified the con¬joint operation of legal and equitable primary rights, or the conjoint operation of legal and equitable remedial rights: they have simply affected the modes by which legal and equitable rights are defined and vindicated.<br />
3. The modern system of "reformed procedure" resulting from these changes.<br />
a. In England, since the Supreme Court of Judicature Acts of 1873 and 1875, going into effect in 1875, there has been a single system of courts administering both law and equity, —a single, simplified system of procedure and pleading be¬ing adopted as far as practicable."<br />
b. In America there are now three typical systems for admin¬istering law and equity."<br />
i In some states, e. g., New Jersey, there is still the dual system Of law courts, with the two respective kinds of procedure.<br />
ii In the federal organization and in a number of states, e. g., Illinois, there is but a single system of courts ad-ministering both law and equity; but the forms of ac¬tion, modes of pleading, etc., in a legal proceeding differ from those in an equitable proceeding. [The rules for equity practice in the federal courts have recently been greatly improved and simplified.]<br />
iii In many states, e. g., New York and California, there is but a single system of courts administering both law and equity and having, in general, as regards both legal proceedings and equitable proceedings, approximately the same forms of procedure, pleading, practice, etc.<br />
u David Dudley Field's New York code of 1848 and the simple "civil action."<br />
v This code is the model for the procedural codes of <br />
California and numerous other "code states."<br />
w There are still certain differences in procedure. Ex¬ample: when "legal" issues are involved, trial' by jury is guaranteed by the state constitution; where¬as in the case of "equitable" issues, questions of fact (as well as of law) are tried by the judge.'<br />
PART III. <br />
FUNDAMENTAL CHARACTERISTIC'S OF EQUITY.<br />
I. Guiding ideas and maxims.<br />
A In the early development of equity the guiding ideas were "con- <br />
science," "good faith," "reason," and, more rarely, "equity.'<br />
B The following maxims are still of some influence in the determina¬tion of cases not decisively governed by more specific rule or prece¬dent: they are, however, mere "guide-posts" and must not be taken literally.<br />
Equity will not suffer a right to be without a remedy.<br />
2 Equity regards that as done which ought to be done.<br />
3 Equity looks to the intent rather than to the form.<br />
4 Equity imputes an intent to fulfil an obligation.<br />
5 Equality is equity.<br />
6 He who seeks equity must do equity.<br />
7 He who comes into equity must come with clean hands.<br />
8 Where there are equal equities the first in time shall prevail.<br />
9 Where equities are equal the legal title will prevail:<br />
so Equity aids the vigilant, not those who slumber on their rights. <br />
is Equity follows the Law. (That is, in dealing with "equitable<br />
estates" equity follows in large measure the analogy of "legal<br />
estates.")<br />
C The general principles and specific rules of equity are now for the most part defined by a large and well organized body of precedents, so that the above general ideas and maxims are, at the present time, of comparatively slight importance.'<br />
II. Characteristic features of equitable remedies and procedure: these may best be seen by contrasting equity and law as they now exist.<br />
A Equitable remedial proceedings and decrees contrasted with legal remedial proceedings and judgments in relation to the general char¬acter of the relief granted.<br />
Prevention vs. reparation.<br />
a Legal remedies generally consist of mere reparation for the violation of a right.<br />
b Equitable remedies, when necessary, consist in preventing the threatened violation of a right.<br />
2 Specific reparation vs. non-specific reparation (damages).<br />
a At law, if a right has been violated, the remedy is non-specific reparation (i.e., damages) except in the following cases of specific reparation:<br />
i Recovery of possession of realty: ejectment, etc.<br />
ii Recovery of possession of specific personal property: re¬plevin, etc.<br />
iii Recovery of damages for breach of an obligation to pay money. (In this case the specific character of the relief is a coincidence.)<br />
b In equity specific reparation for a right already violated is granted unless there is good reason for granting merely non-specific reparation (i. e., damages).<br />
B Equitable remedial proceedings and decrees contrasted with legal remedial proceedings and judgments in relation to the powers of courts and parties in securing their performance or satisfaction.<br />
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<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-84194553680273350632016-04-02T18:16:00.000+01:002016-04-02T18:16:03.721+01:00SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqO7SVGkUwgorVD0O651yns1_a1aOUG052O_3inokL8j1v573vLACymLCe2NmE5z04tzpR5wKQ7cNNKyY7E_nRd93J2t9gEfqD0JKV9l-NcAV1J47H7T9VwC32HtPPsor_yhqxYsA_eYeR/s1600/wesley-newcomb-hohfeld.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqO7SVGkUwgorVD0O651yns1_a1aOUG052O_3inokL8j1v573vLACymLCe2NmE5z04tzpR5wKQ7cNNKyY7E_nRd93J2t9gEfqD0JKV9l-NcAV1J47H7T9VwC32HtPPsor_yhqxYsA_eYeR/s400/wesley-newcomb-hohfeld.jpg" /></a></div><br />
<br />
This is a non-emphasized (italics and bolds removed) version of the body (footnotes removed) of the article "Some Fundamental Legal Conceptions As Applied In Judicial Reasoning", written by Wesley Newcomb Hohfeld and published on January 1, 1913 in Yale Law Journal.<br />
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You may access the original, full article at <a href="http://www.jstor.org/stable/785533">JSTOR</a><br />
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<div style="text-align: center;">SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING</div><br />
From very early days down to the present time the essential nature of trusts and other equitable interests has formed a favorite subject for analysis and disputation. The classical discussions of Bacon and Coke are familiar to all students of equity, and the famous definition of the great chief justice (however inadequate it may really be) is quoted even in the latest textbooks on trusts. That the subject has had a peculiar fascination for modern legal thinkers is abundantly evidenced by the well known articles of Langdell and Ames, by the oft-repeated observations of Maitland in his Lectures on Equity, by the very divergent treatment of Austin in his Lectures on Jurisprudence, by the still bolder thesis of Salmond in his volume on Jurisprudence, and by the discordant utterances of Mr. Hart and Mr. Whitlock in their very recent contributions to our periodical literature.<br />
<br />
It is believed that all of the discussions and analyses referred to are inadequate. Perhaps, however, it would have to be admitted that even the great intrinsic interest of the subject itself and the noteworthy divergence of opinion existing among thoughtful lawyers of all times would fail to afford more than a comparatively slight excuse for any further discussion considered as a mere end in itself. But, quite apart from the presumably practical consideration of endeavoring to "think straight" in relation to all legal problems, it is apparent that the true analysis of trusts and other equitable interests is a matter that should appeal to even the most extreme pragmatists of the law. It may well be that one's view as to the correct analysis of such interests would control the decision of a number of specific questions. This is obviously true as regards the solution of many difficult and delicate problems in constitutional law and in the conflict of laws. So, too, in certain questions in the law of perpetuities, the intrinsic nature of equitable interests is of great significance, as attested by the well-known Gomm case and others more or less similar. The same thing is apt to be true of a number of special questions relating to the subject of bona fide purchase for value. So on indefinitely.<br />
<br />
But all this may seem like misplaced emphasis; for the suggestions last made are not peculiarly applicable to equitable interests: the same points and the same examples seem valid in relation to all possible kinds of jural interests, legal as well as equitable,—and that too, whether we are concerned with "property," "contracts," "torts," or any other title of the law. Special reference has therefore been made to the subject of trusts and other equitable interests only for the reason that the striking divergence of opinion relating thereto conspicuously exemplifies the need for dealing somewhat more intensively and systematically than is usual with the nature and analysis of all types of jural interests. Indeed, it would be virtually impossible to consider the subject of trusts at all adequately without, at the very threshold analyzing and discriminating the various fundamental conceptions that are involved in practically every legal problem. In this connection the suggestion may be ventured that the usual discussions of trusts and other jural interests seem inadequate (and at times misleading) for the very reason that they are not founded on a sufficiently comprehensive and discriminating analysis of jural relations in general. Putting the matter in another way, the tendency—and the fallacy—has been to treat the specific problem as if it were far less complex than it really is; and this commendable effort to treat as simple that which is really complex has, it is believed, furnished a serious obstacle to the clear understanding, the orderly statement, and the correct solution of legal problems. In short, it is submitted that the right kind of simplicity can result only from more searching and more discriminating analysis.<br />
<br />
If, therefore, the title of this article suggests a merely philosophical inquiry as to the nature of law and legal relations,—a discussion regarded more or less as an end in itself.—the writer may be pardoned for repudiating such a connotation in advance. On the contrary, in response to the invitation of the editor of this journal, the main purpose of the writer is to emphasize certain oft-neglected matters that may aid in the understanding and in the solution of practical, every-day problems of the law. With this end in view, the present article and another soon to follow will discuss, as of chief concern, the basic conceptions of the law,—the legal elements that enter into all types of jural interests. A later article will deal specially with the analysis of certain typical and important interests of a complex character,—more particularly trusts and other equitable interests. In passing, it seems necessary to state that both of these articles are intended more for law school students than for any other class of readers. For that reason, it is hoped that the more learned reader may pardon certain parts of the discussion that might otherwise seem unnecessarily elementary and detailed. On the other hand, the limits of space inherent in a periodical article must furnish the excuse for as great a brevity of treatment as is consistent with clearness, and for a comparatively meager discussion—or even a total neglect—of certain matters the intrinsic importance of which might otherwise merit greater attention. In short, the emphasis is to be placed on those points believed to have the greatest practical value.<br />
<br />
At the very outset it seems necessary to emphasize the importance of differentiating purely legal relations from the physical and mental facts that call such relations into being. Obvious as this initial suggestion may seem to be, the arguments that one may hear in court almost any day and likewise a considerable number of judicial opinions afford ample evidence of the inveterate and unfortunate tendency to confuse and blend the legal and the non-legal quantities in a given problem. There are at least two special reasons for this.<br />
<br />
For one thing, the association of ideas involved in the two sets of relations—the physical and the mental on the one hand, and the purely legal on the other—is in the very nature of the case, extremely close. This fact has necessarily had a marked influence upon the general doctrines and the specific rules of early systems of law. Thus, we are told by Pollock and Maitland:<br />
<br />
"Ancient German law, like ancient Roman law, sees great difficulties in the way of an assignment of a debt or other benefit of a contract * * * men do not see how there can be a transfer of a right unless that right is embodied in some corporeal thing. The history of the incorporeal things has shown us this; they are not completely transferred until the transferee has obtained seisin, has turned his beasts onto the pasture, presented a clerk to the church or hanged a thief upon the gallows. A covenant or a warranty of title may be so bound up with land that the assignee of the land will be able to sue the covenantor or warrantor." <br />
In another connection, the same learned authors observe:<br />
<br />
"The realm of medieval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at all events if it has what we may call a territorial ambit, is thought of as a thing that is very like a piece of land. Just because it is a thing it is transferable. This is no fiction invented by the speculative jurists. For the popular mind these things are things. The lawyer's business is not to make them things but to point out that they are incorporeal. The layman who wishes to convey the advowson of a church will say that he conveys the church; it is for Bracton to explain to him that what he means to transfer is not that structure of wood and stone which belongs to God and the saints, but a thing incorporeal, as incorporeal as his own soul or the anima mundi"<br />
<br />
A second reason for the tendency to confuse or blend non-legal and legal conceptions consists in the ambiguity and looseness of our legal terminology. The word "property" furnishes a striking example. Both with lawyers and with laymen this term has no definite or stable connotation. Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again—with far greater discrimination and accuracy—the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a "blended" sense as to convey no definite meaning whatever.<br />
<br />
For the purpose of exemplifying the looser usage just referred to, we may quote from Wilson v. Ward Lumber Co.:<br />
<br />
"The term 'property', as commonly used denotes any external object over which the right of property is exercised. In this sense it is a very wide term, and includes every class of acquisitions which a man can own or have an interest in."<br />
<br />
Perhaps the ablest statement to exemplify the opposite and more accurate usage is that of Professor Jeremiah Smith (then Mr. Justice Smith) in the leading case of Eaton v. B. C. & M. R. R. Co.:<br />
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"In a strict legal sense, land is not 'property', but the subject of property. The term 'property', although in common parlance frequently applied to a tract of land or a chattel, in its legal signification 'means only the rights of the owner in relation to it'. 'It denotes a right over a determinate thing'. 'Property is the right of any person to possess, use, enjoy, and dispose of a thing'. Selden, J., in Wynehamer v. People, 13 N. Y., 378, p. 433; 1 Blackstone's com., 138; 2 Austin's Jurisprudence, 3rd ed., 817, 818. * * * The right of indefinite user (or of using indefinitely) is an essential quality of absolute property, without which absolute property can have no existence. * * * This right of user necessarily includes the right and power of excluding others from using^ the land. See 2 Austin on Jurisprudence, 3rd ed., 836; Wells, J., in Walker v. O. C. W. R. R.} 103 Mass., 10, p. 14."<br />
<br />
Another useful passage is to be found in the opinion of Sherwood, J., in St. Louis v. flail : <br />
<br />
"Sometimes the term is applied to the thing itself, as a horse, or a tract of land; these things, however, though the subjects of property, are, when coupled with possession, but the indicia, the visible manifestation of invisible rights, 'the evidence of things not seen.'<br />
<br />
"Property, then, in a determinate object, is composed of certain constituent elements, to wit: The unrestricted right of use, enjoyment, and disposal, of that object."<br />
<br />
In connection with the ambiguities latent in the term "property", it seems well to observe that similar looseness of thought and expression lurks in the supposed (but false) contrast between "corporeal" and "incorporeal" property. The second passage above quoted from Pollock and Maitland exhibits one phase of this matter. For further striking illustration, reference may be made to Blackstone's well-known discussion of corporeal and incorporeal hereditaments. Thus, the great commentator tells us:<br />
<br />
"But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed." <br />
<br />
It is clear that only legal interests as such can be inherited; yet in the foregoing quotation there is inextricable confusion between the physical or "corporeal" objects and the corresponding legal interests, all of which latter must necessarily be "incorporeal," or "invisible," to use the expression of Mr. Justice Sherwood. This ambiguity of thought and language continues throughout Blackstone's discussion; for a little later he says:<br />
<br />
"Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled; are creatures of the mind, and exist only in contemplation."<br />
<br />
Still further on he says:<br />
<br />
"An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same. * * *<br />
<br />
"Incorporeal hereditaments are principally of ten sorts: ad-vowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents."<br />
<br />
Since all legal interests are "incorporeal"—consisting, as they do, of more or less limited aggregates of abstract legal relations— such a supposed contrast as that sought to be drawn by Black-stone can but serve to mislead the unwary. The legal interest of the fee simple owner of land and the comparatively limited interest of the owner of a "right of way" over such land are alike so far as "incorporeality" is concerned; the true contrast consists, of course, primarily in the fact that the fee simple owner's aggregate of legal relations is far more extensive than the aggre-gate of the easement owner.<br />
<br />
Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional. The term, "transfer," is a good example. If X says that he has transferred his watch to Y, he may conceivably mean, quite literally, that he has physically handed over the watch to Y; or, more likely, that he has "transferred" his legal interest, without any. delivery of possession,—the latter, of course, being a relatively figurative use of the term. This point will be reached again, when we come to treat of the "transfer" of legal interests. As another instance of this essentially metaphorical use of a term borrowed from the physical world, the word "power" may be mentioned. In legal discourse, as in daily life, it may frequently be used in the sense of physical or mental capacity to do a thing; but, more usually and aptly, it is used to indicate a "legal power", the connotation of which latter term is fundamentally different. The same observations apply, mutatis mutandis, to the term "liberty."<br />
<br />
Passing to the field of contracts, we soon discover a similar inveterate tendency to confuse and blur legal discussions by failing to discriminate between the mental and physical facts involved in the so-called "agreement" of the parties, and the legal "contractual obligation" to which those facts give rise. Such ambiguity and confusion are peculiarly incident to the use of the term "contract." One moment the word may mean the agreement of the parties; and then, with a rapid and unexpected shift, the writer or speaker may use the term to indicate the contractual obligation created by law as a result of the agreement. Further instances of this sort of ambiguity will be noticed as the discussion proceeds.<br />
<br />
OPERATIVE FACTS CONTRASTED WITH EVIDENTIAL FACTS<br />
<br />
For the purpose of subsequent convenient reference, it seems necessary at this point to lay emphasis upon another important distinction inherent in the very nature of things. The facts important in relation to a given jural transaction may be either operative facts or evidential facts. Operative, constitutive, causal, or "dispositive" facts are those which, under the general legal rules that are applicable, suffice to change legal relations, that is, either to create a new relation, or'to extinguish an old one, or to perform both of these functions simultaneously. For example, in the creation of a contractual obligation between A and B, the affirmative operative facts are, inter alia, that each of the parties is a human being, that each of them has lived for not less than a certain period of time, (is not "under age"), that A has made an "offer" that B has "accepted" it, etc. It is sometimes necessary to consider, also, what may, from the particular point of view, be regarded as negative operative facts. Thus, e.g., the fact that A did not willfully misrepresent an important matter to B, and the fact that A had not "revoked" his offer, must really be included as parts of the totality of operative facts in the case already put.<br />
<br />
Taking another example,-—this time from the general field of torts—if X commits an assault on Y by putting the latter in fear of bodily harm, this particular group of facts immediately create in Y the privilege of self-defense,—that is, the privilege of using sufficient force to repel X's attack; or, correlatively, the otherwise existing duty of Y to refrain from the application of force to the person of X is, by virtue of the special operative facts, immediately terminated or extinguished.<br />
<br />
In passing, it may not be amiss to notice that the term, "facts in issue," is sometimes used in the present connection. If, as is usual, the term means "facts put in issue by the pleadings" the expression is an unfortunate one. The operative facts alleged by the pleadings are more or less generic in character; and if the pleadings be sufficient, only such generic operative facts are "put in issue." The operative facts of real life are, on the other hand, very specific. That being so, it is clear that the real and specific facts finally relied on are comparatively seldom put in issue by the pleadings. Thus, if, in an action of tort, the declaration of A alleges that he was, through the carelessness, etc., of B, bitten by the latter's dog, the fact alleged is generic in character, and it matters not whether it was dog Jim or dog Dick that did the biting. Even assuming, therefore, that the biting was done by Jim, (rather than by Dick), it could not be said that this specific fact was put in issue by the pleadings. Similarly, and more obviously, the pleading in an ordinary action involving so-called negligence, is usually very generic in character, so that any one of various possible groups of specific operative facts would suffice, so far as the defendant's obligation ex delicto is concerned. It therefore could not be said that any one of such groups had been put in issue by the pleadings. A common fallacy in this connection is to regard the specific operative facts established in a given case as being but "evidence" of the generic (or "ultimate") operative facts alleged in the pleadings. <br />
<br />
An evidential fact is one which, on being ascertained, affords some logical basis—not conclusive—for inferring some other fact. The latter may be either a constitutive fact or an intermediate evidential fact. Of all the facts to be ascertained by the tribunal, the operative are, of course, of primary importance; the evidential are subsidiary in their functions. As a rule there is little danger of confusing evidential facts with operative facts. But there is one type of case that not infrequently gives rise to this sort of error. Suppose that in January last a contractual obligation was created by written agreement passing between A and B. In an action now pending between these parties, the physical instrument is offered for inspection by the tribunal. If one were thoughtless, he would be apt to say that this is a case where part of the operative facts creating the original obligation are directly presented to the senses of the tribunal. Yet a moment's reflection will show that such is not the case. The document, in its then existing shape, had, as regards its operative effect, spent its force as soon as it was delivered in January last. If, therefore, the unaltered document is produced for inspection, the facts thus ascertained must, as regards the alleged contractual agreement, be purely evidential in character. That is to say, the present existence of the piece of paper, its specific tenor, etc., may, along with other evidential facts (relating to absence of change) tend to prove the various operative facts of last January,—to wit, that such paper existed at that time; that its tenor was then the same as it now is; that it was delivered by A to B, and so forth.<br />
<br />
It now remains to observe that in many situations a single convenient term is employed to designate (generically) certain miscellaneous groups of operative facts which, though differing widely as to their individual "ingredients," have, as regards a given matter, the same net force and effect. When employed with discrimination, the term "possession" is a word of this character; so also the term "capacity," the term "domicile," etc. But the general tendency to confuse legal and non-legal quantities is manifest here as elsewhere; so that only too frequently these words are used rather nebulously to indicate legal relations as such. <br />
<br />
FUNDAMENTAL JURAL RELATIONS CONTRASTED WITH ONE ANOTHER<br />
<br />
One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to "rights" and "duties," and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, "future" interests, corporate interests, etc. Even if the difficulty related merely to inadequacy and ambiguity of terminology, its seriousness would nevertheless be worthy of definite recognition and persistent effort toward improvement; for in any closely reasoned problem, whether legal or non-legal, chameleon-hued words are a peril both to clear thought and to lucid expression. As a matter of fact, however, the above mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions. That this is so may appear in some measure from the discussion to follow.<br />
<br />
The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless. Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of "opposites" and "correlatives," and then proceeding to exemplify their individual scope and application in concrete cases. An effort will be made to pursue this method:<br />
<br />
Jural rights/privilege/power/immunity<br />
Opposites no-rights/duty/disability/liability<br />
<br />
Jural right/privilege/power/immunity<br />
Correlatives duty/no-right/liability/disability<br />
<br />
Rights and Duties. As already intimated, the term "rights" tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities. As said by Mr. Justice Strong in People v. Dikeman:<br />
<br />
"The word 'right' is defined by lexicographers to denote, among other things, property, interest, power, prerogative, immunity, privilege (Walker's Diet, word 'Right'). In law it is most frequently applied to property in its restricted sense, but it is often used to designate power, prerogative, and privilege, * * *."<br />
<br />
Recognition of this ambiguity is also found in the language of Mr. Justice Jackson, in United States v. Patrick:<br />
<br />
"The words 'right' or 'privilege' have, of course, a variety of meanings, according to the connection or context in which they are used. Their definition, as given by standard lexicographers, include 'that which one has a legal claim to do,' 'legal power! 'authority,' 'immunity granted by authority,' 'the investiture with special or peculiar rights.'"<br />
<br />
And, similarly, in the language of Mr. Justice Sneed, in Lonas v. State:<br />
<br />
"The state, then, is forbidden from making and enforcing any law which shall abridge the privileges and immunities of citizens of the United States. It is said that the words rights, privileges and immunities, are abusively used, as if they were synonymous.<br />
<br />
The word rights is generic, common, embracing whatever may be lawfully claimed."<br />
<br />
It is interesting to observe, also, that a tendency toward discrimination may be found in a number of important constitutional and statutory provisions. Just how accurate the distinctions in the mind of the draftsman may have been it is, of course, impossible to say.<br />
<br />
Recognizing, as we must, the very broad and indiscriminate use of the term, "right" what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning. That clue lies in the correlative "duty," for it is certain that even those who use the word and the conception "right" in the broadest possible way are accustomed to thinking of "duty" as the invariable correlative. As said in Lake Shore & M. R. Co. v. Kurtz:<br />
<br />
"A duty or a legal obligation is that which one ought or ought not to do. 'Duty' and 'right' are correlative terms. When a right is invaded, a duty is violated." <br />
<br />
In other words, if X has a right against Y that he shall stay off the former's land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. If, as seems desirable, we should seek a synonym for the term "right" in this limited and proper meaning, perhaps the word "claim" would prove the best. The latter has the advantage of being a monosyllable. In this connection, the language of Lord Watson in Studd v. Cook is instructive:<br />
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"Any words which in a settlement of movables would be recognized by the law of Scotland as sufficient to create a right or claim in favor of an executor * * * must receive effect if used with reference to lands in Scotland."<br />
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Privileges and "No-Rights" As indicated in the above scheme of jural relations, a privilege is the opposite of a duty, and the correlative of a "no-right." In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off. As indicated by this case, some caution is necessary at this point, for, always, when it is said that a given privilege is the mere negation of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question. Thus, if, for some special reason, X has contracted with Y to go on the former's own land, it is obvious that X has, as regards Y, both the privilege of entering and the duty of entering. The privilege is perfectly consistent with this sort of duty,—for the latter is of the same content or tenor as the privilege;— but it still holds good that, as regards Y, X's privilege of entering is the precise negation of a duty to stay off. Similarly, if A has not contracted with B to perform certain work for the latter, A's privilege of not doing so is the very negation of a duty of doing so. Here again the duty contrasted is of a content or tenor exactly opposite to that of the privilege.<br />
<br />
Passing now to the question of "correlatives," it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called a right or claim. That being so, if further evidence be needed as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a "no-right," there being no single term available to express the latter conception. Thus, the correlative of X's right that Y shall not enter on the land is Y's duty not to enter; but the correlative of X's privilege of entering himself is manifestly Y's "no-right" that X shall not enter.<br />
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In view of the considerations thus far emphasized, the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other seems evident; and more than that, it is equally clear that there should be a separate term to represent the latter relation. No doubt, as already indicated, it is very common to use the term "right" indiscriminately, even when the relation designated is really that of privilege ; and only too often this identity of terms has involved for the particular speaker or writer a confusion or blurring of ideas. Good instances of this may be found even in unexpected places. Thus Professor Holland, in his work on Jurisprudence, referring to a different and well known sort of ambiguity inherent in the Latin "Ius" the German "Recht" the Italian "Diritto" and the French "Droit,"—terms used to express "not only 'a right,' but also 'Law' in the abstract,"—very aptly observes:<br />
<br />
"If the expression of widely different ideas by one and the same term resulted only in the necessity for * * * clumsy paraphrases, or obviously inaccurate paraphrases, no great harm would be done; but unfortunately the identity of terms seems irresistibly to suggest an identity between the ideas expressed by them."<br />
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Curiously enough, however, in the very chapter where this appears,—the chapter on "Rights,"—the notions of right, privilege and power seem to be blended, and that, too, although the learned author states that "the correlative of * * * legal right is legal duty," and that "these pairs of terms express * * * in each case the same state of facts viewed from opposite sides." While the whole chapter must be read in order to appreciate the seriousness of this lack of discrimination a single passage must suffice by way of example:<br />
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"If * * * the power of the State will protect him in so carrying out his wishes, and will compel such acts or forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a legal right' so to carry out his wishes." <br />
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The first part of this passage suggests privileges, the middle part rights (or claims), and the last part privileges.<br />
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Similar difficulties seem to exist in Professor Gray's able and entertaining work on The Nature and Sources of Law. In his chapter on "Legal Rights and Duties" the distinguished author takes the position that a right always has a duty as its correlative; and he seems to define the former relation substantially according to the more limited meaning of "claim." Legal privileges, powers, and immunities are prima facie ignored, and the impression conveyed that all legal relations can be comprehended under the conceptions, "right" and "duty." But, with the greatest hesitation and deference, the suggestion may be ventured that a number of his examples seem to show the inadequacy of such mode of treatment. Thus, e.g., he says:<br />
<br />
"The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is therefore a right of mine to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic." <br />
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This passage seems to suggest primarily two classes of relations : first, the party's respective privileges, as against A, B, C, D and others in relation to eating the salad, or, correlatively, the respective "no-rights" of A. B. C. D and others that the party should not eat the salad; second, the party's respective rights (or claims) as against A. B. C. D and others that they should not interfere with the physical act of eating the salad, or, correlatively, the respective duties of A, B, C, D and others that they should not interfere.<br />
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These two groups of relations seem perfectly distinct; and the privileges could, in a given case exist even though the rights mentioned did not. A. B. C. and D, being the owners of the salad, might say to X: "Eat the salad, if you can; you have our license to do so, but we don't agree not to interfere with you." In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated. <br />
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Perhaps the essential character and importance of the distinction can be shown by a slight variation of the facts. Suppose that X, being already the legal owner of the salad, contracts with Y that he (X) will never eat this particular food. With A, B, C, D and others no such contract has been made. One of the relations now existing between X and Y is, as a consequence, fundamentally different from the relation between X and A. As regards Y, X has no privilege of eating the salad; but as regards either A or any of the others, X has such a privilege. It is to be observed incidentally that X's right that Y should not eat the food persists even though X's own privilege of doing so has been extinguished. <br />
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On grounds already emphasized, it would seem that the line of reasoning pursued by Lord Lindley in the great case of Quinn v. Leathem is deserving of comment:<br />
<br />
"The plaintiff had the ordinary rights of the British subject. He was at liberty to earn his living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved the liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty except so far as his own liberty of action may justify him in so doing. But a person's liberty or right to deal with others is nugatory unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him."<br />
<br />
A "liberty" considered as a legal relation (or "right" in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege, and certainly that is the fair connotation of the term as used the first three times in the passage quoted. It is equally clear, as already indicated, that such a privilege or liberty to deal with others at will might very conceivably exist without any peculiar concomitant rights against "third parties" as regards certain kinds of interference. Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the "no-rights" of "third parties." It would therefore be a non sequitur to conclude from the mere existence of such liberties that "third parties." are under a duty not to interfere, etc. Yet in the middle of the above passage from Lord Lindley's opinion there is a sudden and question-begging shift in the use of terms. First, the "liberty" in question is transmuted into a "right," and then, possibly under the seductive influence of the latter word, it is assumed that the "correlative" must be "the general duty of every one not to prevent," etc.<br />
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Another interesting and instructive example may be taken from Lord Bowen's oft-quoted opinion in Mogul Steamship Co. v. McGregor.<br />
<br />
"We are presented in this case with an apparent conflict or antimony between two rights that are equally regarded by the law—the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others."<br />
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As the learned judge states, the conflict or antimony is only apparent; but this fact seems to be obscured by the very indefinite and rapidly shifting meanings with which the term "right" is used in the above quoted language. Construing the passage as a whole, it seems plain enough that by "the right of the plaintiffs" in relation to the defendants a legal right or claim in the strict sense must be meant; whereas by "the right of the defendants" in relation to the plaintiffs a legal privilege must be intended. That being so, the "two rights" mentioned in the beginning of the passage, being respectively claim and privilege, could not be in conflict with each other. To the extent that the defendants have privileges the plaintiffs have no rights; and conversely, to the extent that the plaintiffs have rights the defendants have no privileges ("no-privilege" equals duty of opposite tenor). <br />
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Thus far it has been assumed that the term "privilege" is the most appropriate and satisfactory to designate the mere negation of duty. Is there good warrant for this?<br />
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In Mackeldey's Roman Law it is said:<br />
<br />
"Positive laws either contain general principles embodied in the rules of law * * * or for especial reasons they establish something that differs from those general principles. In the first case they contain a common law (jus commune), in the second a special law (jus singulare s. exorbitant). The latter is either favorable or unfavorable * * * according as it enlarges or restricts, in opposition to the common rule, the rights of those for whom it is established. The favorable special law (jus singulare) as also the right created by it * * * in the Roman law is termed benefit of the law (beneficium juris) or privilege (privilegium) * * *"<br />
<br />
First a special law, and then by association of ideas, a special advantage conferred by such a law. With such antecedents, it is not surprising that the English word "privilege" is not infrequently used, even at the present time, in the sense of a special or peculiar legal advantage (whether right, privilege, power or immunity) belonging either to some individual or to some particular class of persons. There are, indeed, a number of judicial opinions recognizing this as one of the meanings of the term in question. That the word has a wider signification even in ordinary nontechnical usage is sufficiently indicated, however, by the fact that the term "special privileges" is so often used to indicate a contrast to ordinary or general privileges. More than this, the dominant specific connotation of the term as used in popular speech seems to be more negation of duty. This is manifest in the terse and oft-repeated expression, "That is your privilege,"—meaning, of course, "You are under no duty to do otherwise."<br />
<br />
Such being the case, it is not surprising to find, from a wide survey of judicial precedents, that the dominant technical meaning of the term is, similarly, negation of legal duty. There are two very common examples of this, relating respectively to "privileged communications" in the law of libel and to "privileges against self-crimination" in the law of evidence. As regards the first case, it is elementary that if a certain group of operative facts are present, a privilege exists, which, without such facts, would not be recognized. It is, of course, equally clear that even though all such facts be present as last supposed, the superadded fact of malice will, in cases of so-called "conditional privilege," extinguish the privilege that otherwise would exist. It must be evident also, that whenever the privilege does exist, it is not special in the sense of arising from a special law, or of being conferred as a special favor on a particular individual. The same privilege would exist, by virtue of general rules, for any person whatever under similar circumstances. So, also, in the law of evidence, the privilege against self-crimination signifies the mere negation of a duty, to testify,—a duty which rests upon a witness in relation to all ordinary matters; and, quite obviously, such privilege arises, if at all, only by virtue of general laws. <br />
<br />
As already intimated, while both the conception and the term "privilege" find conspicuous exemplification under the law of libel and the law of evidence, they nevertheless have a much wider significance and utility as a matter of judicial usage. To make this clear, a few miscellaneous judicial precedents will now be noticed. In Dowman's Case, decided in the year 1583, and reported by Coke, the court applied the term to the subject of waste:<br />
<br />
"And as to the objection which was made, that the said privilege to be without impeachment of waste cannot be without deed, etc. To that it was answered and resolved, that if it was admitted that a deed in such case should be requisite, yet without question all the estates limited would be good , although it is admitted, that the clause concerning the said privilege would be void."<br />
<br />
In the great case of Allen v. Flood the opinion of Mr. Justice Hawkins furnishes a useful passage for the purpose now in view:<br />
<br />
"Every person has a privilege * * * in the interests of public justice to put the criminal law in motion against another whom he bona fide, and upon reasonable and probable cause, believes to have been guilty of a crime. * * * It must not, however, be supposed that hatred and ill-will existing in the mind of a prosecutor must of necessity destroy the privilege, for it is not impossible that such hatred and ill-will may have very natural and pardonable reasons for existing. * * *"<br />
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Applying the term in relation to the subject of property, Mr. Justice Foster, of the Supreme Court of Maine, said in the case of Pulitzer v. Lumgston:<br />
<br />
"It is contrary to the policy of the law that there should be any outstanding titles, estates, or powers, by the existence, operation or exercise of which, at a period of time beyond lives in being and twenty-one years and a fraction thereafter, the complete and unfettered enjoyment of an estate, with all the rights, privileges and powers incident to ownership, should be qualified or impeded."<br />
<br />
As a final example in the present connection, the language ot Baron Alderson in Hilton v. Eckerley may be noticed:<br />
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"Prima facie it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying them on according to his discretion and choice." <br />
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The closest synonym of legal "privilege" seems to be legal "liberty." This is sufficiently indicated by an unusually discriminating and instructive passage in Mr. Justice Cave's opinion in Allen v. Flood: <br />
<br />
"The personal rights with which we are most familiar are: 1. Rights of reputation; 2. Rights of bodily safety and freedom; 3. Rights of property; or, in other words, rights relating to mind, body and estate, * * *<br />
<br />
"In my subsequent remarks the word 'right' will, as far as possible, always be used in the above sense; and it is the more necessary to insist on this as during the argument at your Lordship's bar it was frequently used in a much wider and more indefinite sense. Thus it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun, so long as he does not violate or infringe any one's rights in doing so, which is a very different thing from a right, the violation or disturbance of which can be remedied or prevented by legal process." <br />
<br />
While there are numerous other instances of the apt use of the term "liberty," both in judicial opinions and in conveyancing documents, it is by no means so common or definite a word as "privilege." The former term is far more likely to be used in the sense of physical or personal freedom (i.e., absence of physical restraint), as distinguished from a legal relation; and very frequently there is the connotation of general political liberty, as distinguished from a particular relation between two definite individuals. Besides all this, the term "privilege" has the advantage of giving us, as a variable, the adjective "privileged". Thus, it is frequently convenient to speak of a privileged act, a privileged transaction, a privileged conveyance, etc.<br />
<br />
The term "license", sometimes used as if it were synonymous with "privilege," is not strictly appropriate. This is simply another of those innumerable cases in which the mental and physical facts are so frequently confused with the legal relation which they create. Accurately used, "license" is a generic term to indicate a group of operative facts required to create a particular privilege,—this being especially evident when the word is used in the common phrase "leave and license." This point is brought out by a passage from Mr. Justice Adams' opinion in Clifford v. O'Neill:<br />
<br />
"A license is merely a permission to do an act which, without such permission, would amount to a trespass * * * nor will the continuous enjoyment of the privilege conferred, for any period of time cause it to ripen into a tangible interest in the land affected." <br />
<br />
Powers and Liabilities. As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability., But what is the intrinsic nature of a legal power as such? Is it possible to analyze the conception represented by this constantly employed and very important term of legal discourse? Too close an analysis might seem metaphysical rather than useful; so that what is here presented is intended only as an approximate explanation sufficient for all practical purposes.<br />
<br />
A change in a given legal relation may result (1) from some superadded fact or group of facts not under the volitional control of a human being (or human beings); or (2) from some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.<br />
<br />
The second class of cases—powers in the technical sense—must now be further considered. The nearest synonym for any ordinary case seems to be (legal) "ability"—the latter being obviously the opposite of "inability" or "disability." The term "right" so frequently and loosely used in the present connection, is an unfortunate term for the purpose,—a not unusual result being confusion of thought as well as ambiguity of expression. The term "capacity" is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind.<br />
<br />
Many examples of legal powers may readily be given. Thus, X, the owner of ordinary personal property "in a tangible object" has the power to extinguish his own legal interest (rights, powers, immunities, etc.) through that totality of operative facts known as abandonment; and—simultaneously and correlatively—to create in other persons privileges and powers relating to the abandoned object,—e.g., the power to acquire title to the later by appropriating it. Similarly, X has the power to transfer his interest to Y,—that is, to extinguish his own interest and concomitantly create in Y a new and corresponding interest. So also X has the power to create contractual obligations of various kinds. Agency cases are likewise instructive. By the use of some metaphorical expression such as the Latin, qui facit per alium, facit per se, the true nature of agency relations is only too frequently obscured. The creation of an agency relation involves, inter alia, the grant of legal powers to the so-called agent, and the creation of correlative liabilities in the principal. That is to say, one party P has the power to create agency powers in another party A,—for example, the power to convey X's property, the power to impose (so-called) contractual obligations on P, the power to discharge a debt, owing to P, the power to "receive" title to property so that it shall vest in P, and so forth. In passing, it may be well to observe that the term "authority," so frequently used in agency cases, is very ambiguous and slippery in its connotation. Properly employed in the present connection, the word seems to be an abstract or qualitative term corresponding to the concrete "authorization,"—the latter consisting of a particular group of operative facts taking place between the principal and the agent. All too often, however, the term in question is so used as to blend and confuse these operative facts with the powers and privileges thereby created in the agent. A careful discrimination in these particulars would, it is submitted, go far toward clearing up certain problems in the law of agency. <br />
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Essentially similar to the powers of agents are powers of appointment in relation to property interests. So, too, the powers of public officers are, intrinsically considered, comparable to those of agents,—for example, the power of a sheriff to sell property under a writ of execution. The power of a donor, in a gift causa mortis, to revoke the gift and divest the title of the donee is another clear example of the legal quantities now being considered; also a pledgee's statutory power of sale.<br />
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There are, on the other hand, cases where the true nature of the relations involved has not, perhaps, been so clearly recognized. Thus, in the case of a conditional sale of personality, assuming the vendee's agreement has been fully performed except as to the payment of the last installment and the time for the latter has arrived, what is the interest of such vendee as regards the property? Has he, as so often assumed, merely a contractual right to have title passed to him by consent of the vendor, on final payment being made; or has he, irrespective of the consent of the vendor the power to divest the title of the latter and to acquire a perfect title for himself? Though the language of the cases is not always so clear as it might be, the vendee seems to have precisely that sort of power. Fundamentally considered, the typical escrow transaction in which the performance of conditions is within the volitional control of the grantee, is somewhat similar to the conditional sale of personalty; and, when reduced to its lowest terms, the problem seems easily to be solved in terms of legal powers. Once the "escrow" is formed, the grantor still has the legal title; but the grantee has an irrevocable power to divest that title by performance of certain conditions (i.e., the addition of various operative facts), and concomitantly 10 vest title in himself. While such power is outstanding, the grantor is,of course, subject to a correlative liability to have his title divested. Similarly, in the case of a conveyance of land in fee simple subject to condition subsequent, after the condition has been performed, the original grantor is commonly said to have a "right of entry." If, however, the problem is analyzed, it will be seen that, as of primary importance, the grantor has two legal quantities, (1) the privilege of entering, and (2) the power, by means of such entry, to divest the estate of the grantee. The latter's estate endures, subject to the correlative liability of being divested, until such power is actually exercised. <br />
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Passing now to the field of contracts, suppose A mails a letter to B offering to sell the former's land, Whiteacre, to the latter for ten thousand dollars, such letter being duly received. The operative facts thus far mentioned have created a power as regards B and a correlative liability as regards A. B, by dropping a letter of acceptance in the box, has the power to impose potential or inchoate obligation ex contractu on A and himself; and, assuming that the land is worth fifteen thousand dollars, that particular legal quantity—the "power plus liability" relation between A and B—seems to be worth about five thousand dollars to B. The liability of A will continue for a reasonable time unless, in exercise of his power to do so, A previously extinguishes it by that series of operative facts known as "revocation." These last matters are usually described by saying that A's "offer" will "continue" or "remain open" for a reasonable time, or for the definite time actually specified, unless A previously "withdraws" or "revokes" such offer. While no doubt, in the great majority of cases no harm results from the use of such expressions, yet these forms of statement seem to represent a blending of non-legal and legal quantities which, in any problem requiring careful reasoning, should preferably be kept distinct. An offer, considered as a series of physical and mental operative facts, has spent its force as soon as such series has been completed by the "offeree's receipt." The real question is therefore as to the legal effect, if any, at that moment of time. If the latter consist of B's power and A's correlative liability, manifestly it is those legal relations that "continue" or "remain open" until modified by revocation or other operative facts. What has thus far been said concerning contracts completed by mail would seem to apply, mutatis mutandis, to every type of contract. Even where the parties are in the presence of each other, the offer creates a liability against the offerer, together with a correlative power in favor of the offeree. The only distinction for present purposes would be in the fact that such power and such liability would expire within a very short period of time.<br />
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"If the offerer stipulates that his offer shall remain open for a specified time, the first question is whether such stipulation constitutes a binding contract. * * * When such a stipulation is binding, the further question arises, whether it makes the offer irrevocable. It has been a common opinion that it does, but that is clearly a mistake. * * * An offer is merely one of the elements of a contract; and it is indispensable to the making of a contract that the wills of the contracting parties do, in legal contemplation, concur at the moment of making it. An offer, therefore, which the party making it has no power to revoke, is a legal impossibility. Moreover, if the stipulation should make the offer irrevocable, it would be a contract incapable of being broken; which is also a legal impossibility. The only effect, therefore, of such a stipulation is to give the offeree a claim for damages if the stipulation be broken by revoking the offer." <br />
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The foregoing reasoning ignores the fact that an ordinary offer ipso facto creates a legal relation—a legal power and a legal liability,—and that it is this relation (rather than the physical and mental facts constituting the offer) that "remains open." If these points be conceded, there seems no difficulty in recognizing an unilateral option agreement supported by consideration or embodied in a sealed instrument as creating in the optionee an irrevocable power to create, at any time within the period specified, a bilateral obligation as between himself and the giver of the option. Correlatively to that power, there would, of course, be a liability against the option-giver which he himself would have no power to extinguish. The courts seem to have no difficulty in reaching precisely this result as a matter of substance; though their explanations are always in terms of "withdrawal of. offer," and similar expressions savoring of physical and mental quantities. <br />
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In connection with the powers and liabilities created respectively by an ordinary offer and by an option, it is interesting to consider the liabilities of a person engaged in a "public calling;" for, as it seems, such a party's characteristic position is, one might almost say, intermediate between that of an ordinary contractual offerer and that of an option-giver. It has indeed been usual to assert that such a party is (generally speaking) under a present duty to all other parties; but this is believed to be erroneous. Thus, Professor Wyman, in his work on Public Service Companies, says:<br />
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"The duty placed upon every one exercising a public calling is primarily a duty to serve every man who is a member of the pubic. * * * It is somewhat difficult to place this exceptional duty in our legal system. * * * The truth of the matter is that the obligation resting upon one who has undertaken the performance of public duty is sui generis."<br />
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It is submitted that the learned writer's difficulties arise primarily from a failure to see that the innkeeper, the common carrier and others similarly "holding out" are under present liabilities rather than present duties. Correlatively to those liabilities are the respective powers of the various members of the public. Thus, for example, a travelling member of the public has the legal power, by making proper application and sufficient tender, to impose a duty on the innkeeper to receive him as a guest. For breach of the duty thus created an action would of course lie. It would therefore seem that the innkeeper is, to some extent, like one who had given an option to every travelling member of the public. He differs, as regards net legal effect, only because he can extinguish his present liabilities and the correlative powers of the travelling members of the public by going out of business. Yet, on the other hand, his liabilities are more onerous than that of an ordinary contractual offerer, for he cannot extinguish his liabilities by any simple performance akin to revocation of offer.<br />
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As regards all the "legal powers" thus far considered, possibly some caution is necessary. If, for example, we consider the ordinary property owner's power of alienation, it is necessary to distinguish carefully between the legal power, the physical power to do the things necessary for the "exercise" of the legal power, and, finally, the privilege of doing these things—that is, if such privilege does really exist. It may or may not. Thus, if X, a landowner, has contracted with Y that the former will not alienate to Z, the acts of X necessary to exercise the power of alienating to Z are privileged as between X and every party other than Y; but, obviously, as between X and Y, the former has no privilege of doing the necessary acts; or conversely, he is under a duty to Y not to do what is necessary to exercise the power.<br />
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In view of what has already been said, very little may suffice concerning a liability as such. The latter, as we have seen, is the correlative of power, and the opposite of immunity (or exemption). While no doubt the term "liability" is often loosely used as a synonym for "duty," or "obligation," it is believed, from an extensive survey of judicial precedents, that the connotation already adopted as most appropriate to the word in question is fully justified. A few cases tending to indicate this will now be noticed. In McNeer v. McNeer, Mr. Justice Magruder balanced the conceptions of power and liability as follows:<br />
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"So long as she lived, however, his interest in her land lacked those elements of property, such as power of disposition and liability to sale on execution which had formerly given it the character of a vested estate."<br />
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In Booth v. Commonwealth the court had to construe a Virginia statute providing "that all free white male persons who are twenty-one years of age and not over sixty, shall be liable to serve as jurors, except as hereinafter provided." It is plain that this enactment imposed only a liability and not a duty. It is a liability to have a duty created. The latter would arise only when, in exercise of their powers, the parties litigant and the court officers, had done what was necessary to impose a specific duty to perform the functions of a juror. The language of the court, by Moncure, J., is particularly apposite as indicating that liability is the opposite, or negative, of immunity (or exemption):<br />
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"The word both expressed and implied is 'liable/ which has a very different meaning from 'qualified * * *. It's meaning is 'bound' or 'obliged' * * *. A person exempt from serving on juries is not liable to serve, and a person not liable to serve is exempt from serving. The terms seem to be convertible."<br />
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A further good example of judicial usage is to be found in Emery v. Clough. Referring to a gift causa mortis and the donee's liability to have his already vested interest divested by the donor's exercise of his power of revocation, Mr. Justice Smith said:<br />
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"The title to the gift causa mortis passed by the delivery, defeasible only in the lifetime of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly * * * and after his death it is liable to be divested only in favor of the donor's creditors. * * * His right and power ceased with his death."<br />
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Perhaps the nearest synonym of "liability" is "subjection" or "responsibility." As regards the latter word, a passage from Mr. Justice Day's opinion in McElfresh v. Kirkendall is interesting:<br />
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"The words 'debt' and 'liability' are not synonymous, and they are not commonly so understood. As applied to the pecuniary relations of the parties, liability is a term of broader significance than debt. * * * Liability is responsibility."<br />
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While the term in question has the broad generic connotation already indicated, no doubt it very frequently indicates that specific form of liability (or complex of liabilities) that is correlative to a power (or complex of powers) vested in a party litigant and the various court officers. Such was held to be the meaning of a certain California statute involved in the case of Lattin v. Gillette. Said Mr. Justice Harrison:<br />
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"The word 'liability' is the condition in which an individual is placed after a breach of his contract, or a violation of any obligation resting upon him. It is defined by Bouvier to be responsibility." <br />
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Immunities and Disabilities. As already brought out, immunity is the correlative of disability ("no-power"), and the opposite, or negation, of liability. Perhaps it "will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one's affirmative claim against another, and a privilege is one's freedom from the right or claim of another. Similarly, a power is one's affirmative "control" over a given legal relation as against another; whereas an immunity is one's freedom from the legal power or "control" of another as regards some legal relation.<br />
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A few examples may serve to make this clear. X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is under a disability (i.e., has no power) so far as shifting the legal interest either to himself or to a third party is concerned; and what is true of Y applies similarly to every one else who has not by virtue of special operative facts acquired a power to alienate X's property. If, indeed, a sheriff has been duly empowered by a writ of execution to sell X's interest, that is a very different matter: correlative to such sheriff's power would be the liability of X,—the very opposite of immunity (or exemption). It is elementary, too, that as against the sheriff, X might be immune or exempt in relation to certain parcels of property, and be liable as to others. Similarly, if an agent has been duly appointed by X to sell a given piece of property, then, as to the latter, X has, in relation to such agent, a liability rather than an immunity.<br />
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For over a century there has been, in this country, a great deal of important litigation involving immunities from powers of taxation. If there be any lingering misgivings as to the "practical" importance of accuracy and discrimination in legal conceptions and legal terms, perhaps some of such doubts would be dispelled by considering the numerous cases on valuable taxation exemptions coming before the United States Supreme Court. Thus, in Phoenix Ins. Co. v. Tennessee, Mr. Justice Peckham expressed the views of the court as follows:<br />
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"In granting to the De Sota Company 'all the rights, privileges, and immunities' of the Bluff City Company, all words are used which could be regarded as necessary to carry the exemption from taxation possessed by the Bluff City Company; while in the next following grant, that of the charter of the plaintiff in error, the word 'immunity' is emitted. Is there any meaning to be attached to that omission, and if so, what? We think some meaning is to be attached to it. The word 'immunity' expresses more clearly and definitely an intention to include therein an exemption from taxation than does either of the other words. Exemption from taxation is more accurately described as an 'immunity' than as a privilege, although it is not to be denied that the latter word may sometimes and under some circumstances include such exemptions."<br />
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In Morgan v. Louisiana, there is an instructive discussion from the pen of Mr. Justice Field. In holding that on a foreclosure sale of the franchise and property of a railroad corporation an immunity from taxation did not pass to the purchaser, the learned Judge said:<br />
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"As has been often said by this court, the whole community is interested in retaining the power of taxation undiminished * * *. The exemption of the property of the company from taxation, and the exemption of its officers and servants from jury and military duty, were both intended for the benefit of the company, and its benefit alone. In their personal character they are analogous to exemptions from execution of certain property of debtors, made by laws of several of the states." <br />
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So far as immunities are concerned ,the two judicial discussions last quoted concern respectively problems of interpretation and problems of alienability. In many other cases difficult constitutional questions have arisen as the result of statutes impairing or extending various kinds of immunities. Litigants have, from time to time, had occasion to appeal both to the clause against impairment of the obligation of contracts and to the provision against depriving a person of property without due process of law. This has been especially true as regards exemptions from taxation and exemptions from execution.<br />
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If a word may now be permitted with respect to mere terms as such, the first thing to note is that the word "right" is overworked in the field of immunities as elsewhere. As indicated, however, by the judicial expressions already quoted, the best synonym is, of course, the term "exemption." It is instructive legislature not to grant the benefit claimed by the bill." to note, also, that the word "impunity" has a very similar conno-tation. This is made evident by the interesting discriminations of Lord Chancellor Finch in Skelton v. Skelton, a case decided in 1677:<br />
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"But this I would by no means allow, that equity should enlarge the restraints of the disabilities introduced by act of parliament; and as to the granting of injunctions to stay waste, I took a distinction where the tenant hath only impunitatem, and where he hath jus in arboribus. If the tenant have only a bare indemnity or exemption from an action (at law), if he committed waste, there it is fit he should be restrained by injunction from committing it."<br />
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In the latter part of the preceding discussion, eight conceptions of the law have been analyzed and compared in some detail, the purpose having been to exhibit not only their intrinsic meaning and scope, but also their relations to one another and the methods by which they are applied, in judicial reasoning, to the solution of concrete problems of litigation. Before concluding this branch of the discussion a general suggestion may be ventured as to the great practical importance of a clear appreciation of the distinctions and discriminations set forth. If a homely metaphor be permitted, these eight conceptions,—rights and duties, privileges and no-rights, powers and liabilities, immunities and disabilities,— seem to be what may be called "the lowest common denominators of the law." Ten fractions (1-3, 2-5, etc.) may, superficially, seem so different from one another as to defy comparison. If, however, they are expressed in terms of their lowest common denominators (5-15, 6-15, etc.), comparison becomes easy, and fundamental similarity may be discovered. The same thing isof course true as regards the lowest generic conceptions to which any and all "legal quantities" may be reduced.<br />
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Reverting, for example, to the subject powers, it might be difficult at first glance to discover any essential and fundamental similarity between conditional sales of personalty, escrow transactions, option agreements, agency relations, powers of appointment, etc. But if all these relations are reduced to their lowest generic terms, the conceptions of legal power and legal liability are seen to be dominantly, though not exclusively, applicable throughout the series. By such a process it becomes possible not only to discover essential similarities and illuminating analogies in the midst of what appears superficially to be infinite and hopeless variety, but also to discern common principles of justice and policy underlying the various jural problems involved. An in-direct, yet very practical, consequence is that it frequently becomes feasible, by virtue of such analysis, to use as persuasive authorities judicial precedents that might otherwise seem altogether irrelevant. If this point be valid with respect to powers, it would seem to be equally so as regards all of the other basic conceptions of the law. In short, the deeper the analysis, the great become one's perception of fundamental unity and harmony in the law. <br />
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Wesley Newcomb Hohfeld.<br />
Stanford University, California.<br />
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<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-83581794548528461342016-03-25T16:53:00.000+00:002016-04-02T18:14:35.197+01:00Fundamental Legal Conceptions As Applied In Judicial Reasoning<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqO7SVGkUwgorVD0O651yns1_a1aOUG052O_3inokL8j1v573vLACymLCe2NmE5z04tzpR5wKQ7cNNKyY7E_nRd93J2t9gEfqD0JKV9l-NcAV1J47H7T9VwC32HtPPsor_yhqxYsA_eYeR/s1600/wesley-newcomb-hohfeld.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqO7SVGkUwgorVD0O651yns1_a1aOUG052O_3inokL8j1v573vLACymLCe2NmE5z04tzpR5wKQ7cNNKyY7E_nRd93J2t9gEfqD0JKV9l-NcAV1J47H7T9VwC32HtPPsor_yhqxYsA_eYeR/s400/wesley-newcomb-hohfeld.jpg" /></a></div><br />
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This is a non-emphasized (italics and bolds removed) version of the body (footnotes removed) of the article "Fundamental Legal Conceptions As Applied In Judicial Reasoning", written by Wesley Newcomb Hohfeld and published on January 1, 1917 in Yale Law Journal.<br />
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You may access the original, full article at <a href="http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5383&context=fss_papers">Yale Law School's Web Site</a> <br />
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<div style="text-align: center;">FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING</div><br />
The present discussion, while intended to be intrinsically complete so far as intelligent and convenient perusal is concerned, represents, as originally planned, a continuation of an article which appeared under the same title more than three years ago. It therefore seems desirable to indicate, in very general form, the scope and purpose of the latter. The main divisions were entitled: Legal Conceptions Contrasted with Non-legal Conceptions; Operative Facts Contrasted with Evidential Facts; and Fundamental Jural Relations Contrasted with One Another. The jural relations analyzed and discussed under the last subtitle were, at the outset, grouped in a convenient "scheme of opposites and correlatives"; and it will greatly facilitate the presentation of the matters to be hereafter considered if that scheme be reproduced at the present point:<br />
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Jural Opposites:<br />
right/privilege/power/immunity<br />
no-right/duty/disability/liability<br />
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Jural Correlatives:<br />
right/privilege/power/immunity<br />
duty/no-right/liability/disability<br />
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The great practical importance of accurate thought and precise expression as regards basic legal ideas and their embodiment in a terminology not calculated to mislead is not always fully realized—especially by the student not yet far advanced in his legal work; and it is even true that many an experienced lawyer has all too thoughtlessly assumed that those matters usually considered in works on so-called "jurisprudence" are merely "academic" in character and devoid of substantial utility for the practitioner or judge. In order to dissipate, if possible, this fallacious notion—one so demonstrably unfortunate in its consequences as regards all departments of the law— the eight conceptions represented in the above scheme were analyzed and compared in great detail, the purpose having been not only to exhibit their intrinsic meaning and scope and their relations to one another, but also to exemplify the methods, both good and bad, by which they are actually applied in judicial reasoning to the solution of concrete problems of litigation. The purpose last indicated must in the present discussion, as in the former one, be the justification for frequent concrete examples of judicial usage, and hence for liberal quotations from apposite judicial opinions. Instructive examples, whether by way of model or by way of warning, must also be drawn occasionally from the works of well-known legal authors.<br />
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In the following pages it is proposed to begin the discussion of certain important classifications which are applicable to each of the eight individual jural conceptions represented in the above scheme. Some of such overspreading classifications consist of the following: relations in personam ("paucital" relations), and relations in rem ("multital" relations); common (or general) relations and special (or particular) relations; consensual relations and constructive relations; primary relations and secondary relations; substantive relations and adjective relations; perfect relations and imperfect relations; concurrent relations (i.e., relations concurrently legal and equitable) and exclusive relations (i.e., relations exclusively equitable). As the bulk of our statute and case law becomes greater and greater, these classifications are constantly increasing in their practical importance: not only because of their intrinsic value as mental tools for the comprehending and systematizing of our complex legal materials, but also because of the fact that the opposing ideas and terms involved are at the present time, more than ever before, constituting part of the formal foundation of judicial reasoning and decision. Owing to limitations of space the following pages will be confined to the first classification above indicated, viz., relations in personam and relations in rem.<br />
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The phrases in personam and in rem, in spite of the scope and variety of situations to which they are commonly applied, are more usually assumed by lawyers, judges, and authors to be of unvarying meaning and free of ambiguities calculated to mislead the unwary. The exact opposite is, however, true; and this has occasionally been explicitly emphasized by able judges whose warnings are worthy of notice. Thus, in Tyler v. Court of Registration, Mr. Chief Justice Holmes says, as regards the expression, in rem, that "no phrase has been more misused"; and in the recent case of Hook v. Hoffman, Mr. Justice Franklin, in the course of a scholarly opinion involving the nature of "proceedings in rem" finds it necessary to characterize the expression "jus in rem" as "somewhat obscure and ambiguous." The thoughtful judge last named is, however, kind enough to advise us of the one and only remedy for this difficulty, and prompt to apply that remedy in his own opinion. His words are worthy of quotation:<br />
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"It is no more of a solecism to say immovable personal property than it is to say removable fixtures, nor more contradicting than in the division of actions to use the term 'in rem' when, under the particular state of facts, the action is primarily 'in personam'. In the development of the law it is seldom possible, or, when possible, seldom expedient, to discard established terms. In this connection an observation by Mr. Justice Holmes is peculiarly applicable:<br />
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'As long as the matter to be considered is debated in artificial terms, there is danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied.' Guy v. Donald, 203 U. S. 406.<br />
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"Instead of rejecting convenient terms because they are ambiguous or not comprehensive, it is better to explain their meanings, or, in the language of old Hobbes, 'to snuff them with distinctions and definitions' so as to give a better light"<br />
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All this being so, we are forced to recognize at the very outset that the antithetical pair of expressions, in personam and in rem, is constantly being employed as a basis for classifying at least four distinct matters; and that the respective meanings of the expression in personam and the expression in rem are not the same for all of the different situations involved:<br />
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First, we have a fundamental classification of primary rights as rights in personam, and rights in rem; Second, there is the well-known classification of all judicial proceedings into proceedings or actions in personam and proceedings or actions in rem; Third, there exists the closely related classification of judgments and decrees (and the corresponding jurisdictions of courts), some being called judgments or decrees in personam, and the others judgments or decrees in rem; Fourth, assuming a judgment or decree in personam to have been obtained as the result of what may be called the "primary stage" of the typical judicial proceeding, the question of its so-called "enforcement"— really the "secondary stage" of the judicial proceeding—comes into view; and such enforcement is said to be either in personam, as in the case of the typical contempt proceeding employed to coerce performance of a decree in equity, or in rem, as in the case of the typical execution sale following upon an ordinary legal judgment in personam. Anyone who has seriously observed and reflected on the interrelation of ideas and language must realize how words tend to react upon ideas and to hinder or control them. More specifically, it is overwhelmingly clear that the danger of confusion is especially great when the same term or phrase is constantly used to express two or more distinct ideas. Professor Holland, having in mind, as regards this psychological phenomenon, a particular instance not now before us,—viz., the well-known ambiguity of the Latin jus, the German Recht, the Italian diritto, and the French droit, terms used to indicate both "law" as such and "a right" considered as a concrete relation created by law,—does not exaggerate in the least when he says:<br />
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"If the expression of widely different ideas by one and the same term resulted only in the necessity for these clumsy periphrases, or obviously inaccurate paraphrases, no great harm would be done; but unfortunately the identity of terms seems irresistibly to suggest an identity between the ideas which are expressed by them."<br />
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No doubt this psychological and linguistic principle—what might be called "the principle of linguistic contamination"— explains why certain well-known legal authors have assumed, with unfortunate effect on their reasoning and argument, that the contrasted pairs of terms in personam and in rem have the same intrinsic meaning in each of the four cases above mentioned, and therefore represent throughout a precisely similar basis of classification; also that there is some formal and symmetrical interdependence between the four classifications presented,—e.g., that primary rights in rem are such as may be "enforced," or vindicated, by proceedings and judgments in rem, or, similarly, that primary rights in personam are such as can be "enforced," or vindicated, only by actions or proceedings in personam. At a later point some of these problems and fallacies will receive incidental treatment in connection with the main thread of the discussion, and it will thus be possible to give more concrete specifications and examples. The chief purpose of the following pages is, however, to discuss, directly and exhaustively, only the first of the four general classifications above outlined, i.e., rights (or claims), privileges, powers, and immunities in personam and rights (or claims), privileges, powers, and immunities in rem. Substituting what the writer ventures to suggest as equivalent and more satisfactory terms for the phrases in personam and in rem, we shall have to deal seriatim with eight classifications, as follows: 1. paucital rights (or claims) and multital rights (or claims); 2. paucital privileges and multital privileges; 3. paucital powers and multital powers; 4. paucital immunities and multital immunities; 5. paucital no-rights and multital no-rights; 6. paucital duties and multital duties; 7. paucital disabilities and multital disabilities; 8. paucital liabilities and multital liabilities. Each of these eight definite classifications must, for the sake of clearness, receive somewhat separate treatment. Owing, however, to limitations of space, the present article will deal chiefly with the first subdivision, i.e., paucital rights, or claims, and multital rights, or claims.<br />
<br />
As more fully shown in the former article, the word "right" is used generically and indiscriminately to denote any sort of legal advantage, whether claim, privilege, power, or immunity. In its narrowest sense, however, the term is used as the correlative of duty; and, to convey this meaning, the synonym "claim" seems the best. In what follows, therefore, the term "right" will be used solely in that very limited sense according to which it is the correlative of duty. It is hoped that the meaning and importance of this needful discrimination may gain in concrete-ness and clearness as further details and examples come into view.<br />
<br />
It is necessary at this point to venture a preliminary explanation of the division or classification now before us—confessing at once that it represents a departure from accepted modes of statement or definition on the part of learned authors and judges. It will then remain for the more detailed discussion and argument to show, if possible, that the currently received explanations are not only essentially faulty as regards analysis but also seriously misleading for the very practical purpose of solving legal problems as swiftly and accurately as possible.<br />
<br />
A paucital right, or claim, (right in personam) is either a unique right residing in a person (or group of persons) and availing against a single person (or single group of persons); or else it is one of a few fundamentally similar, yet separate, rights availing respectively against a few definite persons. A multital right, or claim, (right in rem) is always one of a large class of fundamentally similar yet separate rights, actual and potential, residing in a single person (or single group of persons) but availing respectively against persons constituting a very large and indefinite class of people.<br />
<br />
Probably all would agree substantially on the meaning and significance of a right in personam, as just explained; and it is easy to give a few preliminary examples: If B owes A a thousand dollars, A has an affirmative right in personam, or paucital right, that B shall transfer to A the legal ownership of that amount of money. If, to put a contrasting situation, A already has title to one thousand dollars, his rights against others in relation thereto are multital rights, or rights in rem. In the one case the money is owed to A; in the other case it is owned by A. If Y has contracted to work for X during the ensuing six months, X has an affirmative right in personam that Y shall render such service, as agreed. Similarly as regards all other contractual or quasi-contractual rights of this character. On the other hand, there may occasionally be rights in personam of a negative tenor or content. Thus if K, a distinguished opera singer, contracts with J that the former will not for the next three months sing at any rival opera house, J has a negative right in personam against K; and the latter is under a correlative negative duty. In this, as in other cases of rights in the sense of claims, the right of J is but one phase of the total relation between J and K, and the duty of K is another phase of the same relation,—that is, the whole "right—duty" relation may be viewed from different angles.<br />
<br />
In contrast to these examples are those relating to rights, or claims, in rem—i.e., multital rights. If A owns and occupies Whiteacre, not only B but also a great many other persons— not necessarily all persons—are under a duty, e.g., not to enter on A's land. A's right against B is a multital right, or right in rem, for it is simply one of A's class of similar, though separate, rights, actual and potential, against very many persons. The same points apply as regards A's right that B shall not commit a battery on him, A's right that B shall not alienate the affections of A's wife, and A's right that B shall not manufacture a certain article as to which A has a so-called patent.<br />
<br />
Further examples of such negative multital rights will readily occur to the reader. Other important instances will require detailed consideration from time to time.<br />
<br />
In spite of the formal and abstract explanations already given, and in spite of the concrete examples added for merely preliminary purposes, the effort to give an incisive and comprehensive appreciation of the conceptual and linguistic difficulties and dangers involved in the expressions under consideration would doubtless fail, at least as regards the inexperienced student, unless considerably more were done by way of direct discussion of common errors. That is to say, it seems necessary to show very concretely and definitely how, because of the unfortunate terminology involved, the expression "right in rem" is all too frequently misconceived, and meanings attributed to it that could not fail to blur and befog legal thought and argument. Some of these loose and misleading usages will now be considered in detail, it being hoped that the more learned reader will remember that this discussion, being intended for the assistance of law school students more than for any other class of persons, is made more detailed and elementary than would otherwise be necessary.<br />
<br />
(a) A right in rem is not a right "against a thing": In Hook v. Hoffman" we are told by Mr. Justice Franklin, in hopeful vein, that "the somewhat obscure and ambiguous expression 'jus in rem' when standing by itself, catches a borrowed clearness from the expression 'jus in personam' to which it is opposed." This is laudable optimism! It cannot, however, be shared by one who has, in the course of many years, observed not only the ways and tendencies of many hundreds of intelligent students, but also the not unnatural slips of the more learned. Any person, be he student or lawyer, unless he has contemplated the matter analytically and assiduously, or has been put on notice by books or other means, is likely, first, to translate right in personam as a right against a person; and then he is almost sure to interpret right in rem, naturally and symmetrically as he thinks, as a right against a thing. Assuming that the division represented by in personam and in rem is intended to be mutually exclusive, it is plausible enough to assume also that if a right in personam is simply a right against a person, a right in rem must be a right that is not against a person, but against a thing. That is, the expression right in personam, standing alone, seems to encourage the impression that there must be rights that are not against persons. Then, of course, such a supposed, though erroneous, contrast is further encouraged by the prima facie literal meaning of the Latin phrase in rem, considered per se; for it cannot be assumed that the average person is acquainted with the peculiar history and special meaning of that phrase. Such a notion of rights in rem is, as already intimated, crude and fallacious; and it can but serve as a stumbling-block to clear thinking and exact expression. A man may indeed sustain close and beneficial physical relations to a given physical thing: he may physically control and use such thing, and he may physically exclude others from any similar control or enjoyment. But, obviously, such purely physical relations could as well exist quite apart from, or occasionally in spite of, the law of organized society: physical relations are wholly distinct from jural relations. The latter take significance from the law; and, since the purpose of the law is to regulate the conduct of human beings, all jural relations must, in order to be clear and direct in their meaning, be predicated of such human beings. The words of able judges may be quoted as showing their realization of the practical importance of the point now being emphasized:<br />
1900, Mr. Chief Justice Holmes, in Tyler v. Court of Registration:<br />
<br />
"All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of persons affected"<br />
<br />
1905, Mr. Justice Markby, Elements of Law:<br />
<br />
"If we attempt to translate the phrase [in rem] literally, and get it into our heads that a thing, because rights exist in respect of it, becomes a sort of juristical person, and liable to duties, we shall get into endless confusion."<br />
What is here insisted on,—i.e., that all rights in rem are against persons,—is not to be regarded merely as a matter of taste or preference for one out of several equally possible forms of statement or definition. Logical consistency seems to demand such a conception, and nothing less than that. Some concrete examples may serve to make this plain. Suppose that A is the owner of Blackacre and X is the owner of Whiteacre. Let it be assumed, further, that, in consideration of $100 actually paid by A to B, the latter agrees with A never to enter on X's land, Whiteacre. It is clear that A's right against B concerning White-acre is a right in personam, or paucital right; for A has no similar and separate rights concerning Whiteacre availing respectively against other persons in general. On the other hand, A's right against B concerning Blackacre is obviously a right in rem, or multital right; for it is but one of a very large number of fundamentally similar (though separate) rights which A has respectively against B, C, D, E, F, and a great many other persons. It must now be evident, also, that A's Blackacre right against B is, intrinsically considered, of the same general character as A's Whiteacre right against B. The Blackacre right differs, so to say, only extrinsic ally, that is, in having many fundamentally similar, though distinct, rights as its "companions." So, in general, we might say that a right in personam is one having few, if any, "companions"; whereas a right in rem always has many such "companions".<br />
<br />
If, then, the Whiteacre right, being a right in personam, is recognized as a right against a person, must not the Blackacre right also, being, point for point, intrinsically of the same general nature, be conceded to be a right against a person? If not that, what is it? How can it be apprehended, or described, or delimited at all ?<br />
<br />
If it be said that, as regards Blackacre, A has besides his rights, or claims, against B, C, D, E, and others, various legal privileges of controlling and using the land, and that these exist "to, over, or against" the land, one answer might be that as regards White-acre also A has similar privileges against B, C, D, E and all others excepting X, the true owner. But the really relevant and paramount reply at this point is that we are now dealing only with multital rights, or claims, and not with multital privileges. The latter will require attention in a later part of the discussion.<br />
<br />
It may, however, even at this point be incidentally noticed that the general tendency to "confuse" or "blend" legal privileges with legal rights, or claims, has doubtless contributed greatly to the hazy conception of a right in rem as a right to, over, or against a thing.<br />
<br />
For the reasons already given the following passages from legal treatises and judicial opinions seem open to question in one or more particulars:<br />
<br />
1874, Mr. Stephen Martin Leake, Law of Property in Land:<br />
<br />
"Jurisprudence distinguishes Rights, using the term in the strict legal meaning, into the two classes of Rights to Things and Rights against Persons, familiarly known in the civil law by the terms jura in rem and jura in personam.<br />
<br />
"Rights to things, jura in rem, have for their subject some material thing, as land or goods, which the owner may use or dispose of in any manner he pleases within the limits prescribed by the terms of his right. A right of this kind imports in all persons generally the correlative negative duty of abstaining from any interference with the exercise of it by the owner; and by enforcing this duty the law protects and establishes the right. But a right of this kind does not import any positive duty in any determinate person, or require any act or intervention of such person for its exercise and enjoyment.<br />
<br />
"Rights against persons, jura in personam, on the other hand, have for their subject an act or performance of some certain determinate person, as the payment of money, the delivery of goods and the like. A right of this kind imports the correlative positive legal duty in the determinate person to act in the manner prescribed. It depends for its exercise or enjoyment upon the performance of that duty, and is secured by the legal remedies provided for a breach of performance. . . .<br />
<br />
"Rights to things, jura in rem, vary and are distinguished according to the things or material subjects in the use or disposal of which the right consists."<br />
<br />
The learned author, whose work is well known to law students and highly valued for its general clearness and accuracy, has been unfortunate in treating "in rem" as if it meant "to a thing"; and it would seem that he was influenced to do this, partly at least, as a result of confusing legal privileges and legal rights. More than that, this first error has led to an additional one: that of conveying the impression that all rights in rem (multital rights), in order to be such, must relate to a material thing. Such a limitation would exclude not only many rights in rem, or multital rights, relating to persons, but also those constituting elements of patent interests, copyright interests, etc. Finally the learned author falls into the error of asserting that all rights in personam are affirmative in character; whereas they may occasionally be negative, as heretofore seen.<br />
<br />
1916, Professor Joseph Henry Beale, Treatise on Conflict of Laws:<br />
<br />
"The nature of rights.—The primary purpose of law being the creation of rights, and the chief task of the Conflict of Laws to determine the place where a right arose and the law that created it, a more careful study of the nature of rights is of course desirable before the examination of actual cases of conflict is begun. . . .<br />
<br />
"Since we are fortunate enough to have different words for these ideas [law and rights] it is all the more necessary that we should fully understand each of them.<br />
"A right may be deemed as a legally recognized interest in, to, or against a person or a thing."<br />
<br />
1903, Mr. Herbert Thorndyke Tiffany, Modern Law of Real Property:<br />
<br />
"Powers of attorney, by which one person is nominated as an agent to make a transfer or do some other act in the name and stead of the principal, are sometimes spoken of as common-law powers. Such an authority, however, while it did exist as common law, is entirely different from the powers here considered (i.e., powers of appointment), since it is merely an agency in the person to whom the power is given, authorizing him to execute an instrument of conveyance or to do some other act in the place and stead of his principal, the title passing, not by the power of attorney, but by the conveyance subsequently made, which is regarded as made by the principal. A power of attorney creates merely a contractual relation,—rights in personam,—as does any other contract of agency; while a power, such as we here treat of, involving dominion over land to a greater or less extent, creates in the person to whom the power is given rights in rem of a proprietary character."<br />
<br />
The exact meaning of the learned author is not evident; but it seems clear that the power of an agent to convey Whiteacre is not intrinsically different, so long as it endures, from a power to convey Whiteacre in exercise of a so-called power of appointment. It is true that the agent is subject to a liability of having his power "revoked" or divested by the principal, whereas the power of appointment is subject to no similar liability at the hands of anyone. But this difference, conceding its great importance, is, of course, not accurately expressed by asserting that the power of attorney creates rights in personam, and the power of appointment "creates in the person to whom the power is given rights in rem of a proprietary character." In truth the creation of a power of agency does not necessarily involve any contract rights against the principal or any one else. The fact seems to be that the greater "staying" quality of the power of appointment (as compared with the power of agency) has suggested to the author greater "adhesiveness" or "thingness," and hence caused the inappropriate terms now under review. Further critical consideration of the last-quoted passage will be desirable in connection with the subject of immunities in personam and immunities in rem.<br />
<br />
1828, Sir Thomas Plumer, M.R., in Dearie v. Hall:<br />
<br />
"They say, that they were not bound to give notice to the trustees; for that notice does not form part of the necessary conveyance of an equitable interest. I admit, that, if you mean to rely on contract with the individual, you do not need to give notice; from the moment of the contract, he, with whom you are dealing, is personally bound. But if you mean to go further, and to make your right attach upon the thing which is the subject of the contract, it is necessary to give notice; and, unless notice is given, you do not do that which is essential in all cases of transfer of personal property. . . . Notice, then, is necessary to perfect the title,—to give a complete right in rem, and not merely a right as against him who conveys his interest."<br />
<br />
This passage from Dearie v. Hall will require further treatment in connection with the subject of immunities in personam and immunities in rem.<br />
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1857, Mr. Justice Cutting, in Redington v. Frye:<br />
<br />
"But a sub-contractor has no claim against the owner of the property—his claim is only against the property (in rem), and the person and property of his employer (in personam) "<br />
<br />
The preceding quotations from legal treatises and judicial opinions have been presented, as is evident, for the purpose of exemplifying the less careful and exact use of terms that we sometimes find, and for the further purpose of indicating the confusion of thought that is likely to result in such cases. Over against these will now be considered various passages from legal treatises and judicial opinions exemplifying more precise modes of thought and expression. It is desirable to begin with Austin; for his work on Jurisprudence was the first to give prominence to the terms right in rem and right in personam among English-speaking lawyers and authors, and his language has become classical in its importance:<br />
<br />
1832, Professor John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law:<br />
<br />
"The distinction between Rights which I shall presently endeavor to explain, is that all-pervading and important distinction which has been assumed by the Roman Institutional Writers as the main groundwork of their arrangement: namely, the distinction between rights in rem and rights in personam; or rights which avail against persons generally or universally, and rights which avail exclusively against certain or determinate persons.<br />
<br />
"The terms 'jus in rem' and 'jus in personam' were devised by the Civilians of the Middle Ages, or arose in times still more recent. . . .<br />
<br />
"The phrase in rem denotes the compass, and not the subject of the right. It denotes that the right in question avails against persons generally; and not that the right in question is a right over a thing. For, as I shall show hereafter, many of the rights, which are jura or rights in rem, are either rights over, or to, persons, or have no subject (person or thing).<br />
<br />
"The phrase in personam is an elliptical or abridged expression for 'in personam certam sive determinatam' Like the phrase in rem, it denotes the compass of the right. It denotes that the right avails exclusively against a determinate person, or against determinate persons."<br />
<br />
Additional explanations of ideas and terms and further instructive examples of usage are to be found in the following utterances of able judges:<br />
<br />
1871, Mr. Justice Markby, Elements of Law:<br />
<br />
"The term 'right in rem' is a very peculiar one; translated literally it would mean nothing. The use of it in conjunction with the term 'in personam' as the basis of a classification of actions in the Roman law has been explained above, and its meaning will be further illustrated by two passages in the Digest of Justinian. In Book iv. tit. 2. sec. 9, the rule of law is referred to— that what is done under the influence of fear should not be binding: and commenting on this it is remarked, that the lawgiver speaks here generally and 'in rem,' and does not specify any particular kind of persons who cause the fear; and that therefore the rule of law applies, whoever the person may be. Again, in Book xliv. tit. 4. sec. 2, it is laid down that, in what we should call a plea of fraud, it must be specially stated whose fraud is complained of, 'and not in rem'. On the other hand, it is pointed out that, if it is shown whose fraud is complained of, it is sufficient; and it need not be said whom the fraud was intended to injure; for (says the author of the Digest) the allegation that the transaction is void, by reason of the fraud of the person named, is made 'in rem.' In all these three cases 'in rem' is used as an adverb, and I think we should express as nearly as possible its exact equivalent, if we substituted for it the English word 'generally'. In the phrase 'right in rem' it is used as an adjective, and the equivalent English expression would be a 'general right'; but a more explicit phrase is a 'right availing against the world at large': and if this, which is the true meaning of the phrase 'right in rem,' be carefully remembered, no mistake need occur."<br />
<br />
1883, Mr. Justice Mulkey, in W., St. L. & P. Ry. Co. v. Shacklet:<br />
<br />
"One of the primary rights of the citizen, sanctioned by the positive law of the State, is security to life and limb, and indemnity against personal injuries occasioned by the negligence, fraud or violence of others. This is a right which avails against all persons whomsoever, and is distinguished from a right which avails against a particular individual or a determinate class of persons. The former is called a right in rem, the latter a right in personam. The former class of rights exists independently of contract; the latter frequently arises out of contract. . . .<br />
<br />
"So in the present case, appellee's intestate had a right in rem, or a general right, which entitled him, if free from fault himself, to be protected and indemnified against injuries resulting from the negligence of all persons whomsoever, including the appellant. . . ."<br />
<br />
1886, Mr. Justice Holmes, in Hogan v. Barry:<br />
<br />
"There is no doubt that an easement may be created by words sounding in covenant. Bronson v. Coffin, 108 Mass. 175, 180. If the seeming covenant is for a present enjoyment of a nature recognized by the law as capable of being conveyed and made an easement,—capable, that is to say, of being treated as a jus in rem, and as not merely the subject of a personal undertaking,—and if the deed discloses that the covenant is for the benefit of adjoining land conveyed at the same time, the covenant must be construed as a grant, and, as is said in Plowden, 308, 'the phrase of speech amounts to the effect to vest a present property in you'. An easement will be created and attached to the land conveyed, and will pass with it to assigns, whether mentioned in the grant or not."<br />
<br />
1903, Mr. Justice Holmes, in International Postal Supply Co. v. Bruce:<br />
<br />
"As the United States could not be made a party the suit failed. In the case at bar the United States is not the owner of the machines, it is true, but it is a lessee in possession, for a term which has not expired. It has a property, a right in rem, in the machines, which, though less extensive than absolute ownership, has the same incident of a right to use them while it lasts."<br />
<br />
1904, Mr. Justice Holmes, in Baltimore Shipbuilding Co. v. Baltimore:<br />
<br />
"In the next place, as to the interest of the United States in the land. This is a mere condition subsequent. There is no easement or present right in rem. The obligation to keep up the dock and to allow the United States to use it carries active duties and is purely personal. . . . The United States has no present right to the land, but merely a personal claim against the corporation, reinforced by a condition."<br />
<br />
1905, Mr. Justice Holmes, in Muhlker v. Harlem R. R. Co.:<br />
<br />
"What the plaintiff claims is really property, a right in rem. It is called contract merely to bring it within the contract clause of the Constitution".<br />
<br />
1913, Viscount Haldane, Lord Chancellor, in Attenborough v. Solomon:<br />
<br />
"But the question which goes to the root of this case is one which renders such a proposition wholly beside the point. If I am right, there is no question here of an executor acting in the execution of his powers, so far as this residue is concerned. The executors had long ago lost their vested right of property as executors and become, so far as the title to it was concerned, trustees under the will. Executors they remained, but they were executors who had become divested, by their assent to the dispositions of the will, of the property which was theirs virtute officii; and their right in rem, their title of property, had been transformed into a right in personam,—a right to get the property back by proper proceedings against those in whom the property should be vested if it turned out that they required it for payment of debts for which they had made no provision."<br />
<br />
1914, Viscount Haldane, Lord Chancellor, in Sinclair v. Brougham:<br />
<br />
"The difficulty of establishing a title in rem in this case arises from the apparent difficulty of following money. In most cases money cannot be followed. When sovereigns or bank notes are paid over as currency, so far as the payer is concerned, they cease ipso facto to be the subjects of specific title as chattels. If a sovereign or bank note be offered in payment it is, under ordinary circumstances, no part of the duty of the person receiving it to inquire into title. The reason of this is that chattels of such a kind form part of what the law recognizes as currency, and treats as passing from hand to hand in point, not merely of possession, but of property. It would cause great inconvenience to commerce if in this class of chattel an exception were not made to the general requirement of the law as to title. . . .<br />
<br />
"That seems to be, so far as the doctrine of the common law is concerned, the limit to which the exception to the rule about currency was carried; whether the case be that of a thief or of a fraudulent broker, or of money paid under mistake of fact, you can, even at law, follow, but only so long as the relation of debtor and creditor has not superseded the right in rem"<br />
<br />
1914, Lord Sumner, in Sinclair v. Brougham:<br />
<br />
"Analogous cases have been decided with regard to chattels. They differ, no doubt, because of the fact that the property in the chattels remained unchanged, though identification and even identity of the subject-matter of the property failed, whereas here, except as to currency, and even there only in a restricted sense, the term property, as we use that term of chattels, does not apply, and, at least as far as intention could do it, both depositors and shareholders had given up the right to call the money or its proceeds their own, and had taken instead personal claims on the society."<br />
<br />
1916, Mr. Justice Brandeis, in Kryger v. Wilson:<br />
<br />
"If the plaintiff in error had not submitted himself to the jurisdiction of the court, the decree could have determined only the title to the land, and would have left him free to assert any personal rights he may have had under the contract"<br />
<br />
(b) A multital right, or claim, (right in rem) is not always one relating to a thing, i.e., a tangible object: If the preceding discussion has served its various purposes, it must now be reasonably clear that the attempt to conceive of a right in rem as a right against a thing should be abandoned as intrinsically unsound, as thoroughly discredited according to good usage, and, finally, as all too likely to confuse and mislead. It is desirable, next, to emphasize, in more specific and direct form, another important point which has already been incidentally noticed: that a right in rem is not necessarily one relating to, or concerning, a thing, i.e., a tangible object. Such an assumption, although made by Leake and by many others who have given little or no attention to fundamental legal conceptions, is clearly erroneous. The term right in rem (multital right) is so generic in its denotation as to include: 1. Multital rights, or claims, relating to a definite tangible object: e.g., a landowner's right that any ordinary person shall not enter on his land, or a chattel owner's right that any ordinary person shall not physically harm the object involved,—be it horse, watch, book, etc. 2. Multital rights (or claims) relating neither to definite tangible object nor to (tangible) person, e.g., a patentee's right, or claim, that any ordinary person shall not manufacture articles covered by the patent; 3. Multital rights, or claims, relating to the holder's own person, e.g., his right that any ordinary person shall not strike him, or that any ordinary person shall not restrain his physical liberty, i.e., "falsely imprison" him; 4. Multital rights residing in a given person and relating to another person, e.g., the right of a father that his daughter shall not be seduced, or the right of a husband that harm shall not be inflicted on his wife so as to deprive him of her company and assistance; 5. Multital rights, or claims, not relating directly to either a (tangible) person or a tangible object, e.g., a person's right that another shall not publish a libel of him, or a person's right that another shall not publish his picture,—the so-called "right of privacy" existing in some states, but not in all.<br />
<br />
It is thus seen that some rights in rem, or multital rights, relate fairly directly to physical objects; some fairly directly to persons; and some fairly directly neither to tangible objects nor to persons.<br />
<br />
It is, however, important to observe that there is a more specific Latin term, jus in re, which has been frequently used by able judges to indicate jural relations in rem (i.e., multital rights, privileges, powers, and immunities) directly concerning a tangible object, such as a piece of land, a vessel, etc. This form of expression appears to have been used by the classical Roman jurists almost exclusively in the more specific combination, jus in re aliena (easements, profits, etc.), as contrasted with jus in re propria; but the more generic jus in re was freely employed by the modern civilians,—especially in opposition to a particular kind of jus in personam called jus ad rem. The following explanations and examples of modern usage by able judges are worthy of careful and critical consideration:<br />
<br />
1871, Mr. Justice Markby, Elements of Law:<br />
<br />
"It is necessary to distinguish carefully between a right in rem and a (so-called) real right. A real right is a right over a specific thing (a jus in re, as will be explained hereafter). Thus a right of ownership is a real right; it is also a right in rem. But a right to personal safety is not a real right, though it is a right in rem."<br />
<br />
1914, Lord Dunedin, in Sinclair v. Brougham:<br />
<br />
"The case of a chattel is easy: A shopkeeper delivers an article at the house of B. in mistake for the house of A. An action would lie against B. for restitution. Such an action could easily be founded on the right of property. To use the Roman phraseology, there would be a jus in re. And where there was a jus in re there would not be, I take it, any difficulty in finding a form of common law action to fit the situation. But the moment you come to deal with what in Roman phraseology is called a fungible, and especially when you deal with money, then the jus in re may disappear, and with it the appropriateness of such common law action. The familiar case is the paying of money by A. to B. under the mistaken impression in fact that a debt was due, when in truth there was no debt due. It was to fit cases of this sort that the common law evolved the action for money had and received."<br />
<br />
1914, Lord Kinnear, in Bank of Scotland v. Macleod:<br />
<br />
"But to extend Lord Westbury's phrase so as to make it cover personal obligations which do not affect the real right of the obligor seems to me altogether extravagant. It was maintained in argument that every obligation with reference to any property or fund which involves a liability to account fell within the principle. If that were so every imperfect security, however invalid as a real right, would be effectual as a trust."<br />
<br />
1855, Mr. Justice B. R. Curtis, in The Young Mechanic:<br />
<br />
"But I will first inquire what right or interest is conferred by the statute, provided it intended to create such a lien, as exists by the general admiralty law upon foreign vessels.<br />
<br />
"Though the nature of admiralty liens has doubtless been long understood, it does not seem to have been described with fulness and precision, in England or this country. That it differs from what is called by the same name in the common law, is clear; for it exists independent of possession. The Bold Buccleugh, 22 Eng. L. & Eq. 62; The Nestor, 1 Sumn. 73. That it is not identical with equitable liens, is equally clear; for the latter arise out of constructive trusts, and are neither a jus ad rem, or a jus in re; but simply a duty, binding on the conscience of the owner of the thing, and which a Court of Equity will compel him specifically to perform. 2 Story's Eq. Jurisp. § 1217; Ex parte Foster, 2 Story, R. 145; Clarke v. Southzvick, 1 Curtis, 299. . . .<br />
<br />
"In my opinion the definition given by Pothier of an hypothecation is an accurate description of a maritime lien under our law. 'The right which a creditor-has in a thing of another, which right consists in the power to cause that thing to be sold, in order to have the debt paid out of the price. This is a right in the thing, a jus in re.' Traite de I'Hypotheque, art. prelim. See also, Sanders's Justinian, page 227. . . .<br />
<br />
"Whether he can make the seizure himself, only to be followed by a judicial sale, or must resort to a court for both, may be important as to remedy, but does not affect his ultimate and essential right, . . .<br />
<br />
"Though tacitly created by the law, and to be executed only by the aid of a court of justice, and resulting in a judicial sale, it is as really a property in the thing as the right of a pledgee or the lien of a bailee for work. The distinction between a jus in re and a jus ad rem was familiar to lawyers of the middle ages, and is said then to have first come into practical use, as the basis of the division of rights into real and personal. Sanders' Intro, to Just. p. 49. A jus in re is a right, or property in a thing, valid as against all mankind. A jus ad rem is a valid claim on one or more persons to do something, by force of which a jus in re will be acquired. Pothier, Traite du Droit de Domaine, ch. Pretences; Hugo, His. du Droit Rom. vol. 1, p. 118. . . .<br />
<br />
"My opinion is, that the lien conferred by the local law was an existing incumbrance on the vessel, not divested or extinguished by the death or insolvency of the owner; and that, consequently, the decree of the District Court must be affirmed."<br />
<br />
1900, Mr. Chief Justice Fuller, in The Carlos F. Roses:<br />
<br />
"The right of capture acts on the proprietary interest of the thing captured at the time of the capture and is not affected by the secret liens or private engagements of the parties. Hence the prize courts have rejected in its favor the lien of bottomry bonds, of mortgages, for supplies, and of bills of lading. The assignment of bills of lading transfers the jus ad rem, but not necessarily the jus in rem. The jus in re or in rem implies the absolute dominion,— the ownership independently of any particular relation with another person. The jus ad rem has for its foundation an obligation incurred by another. Sand. Inst. Just. Introd., xlviii; 2 Marcade, Expl. du Code Napoleon, 350; 2 Bouvier, (Rawle's Revision), 73; The Young Mechanic, 2 Curtis, 404.<br />
<br />
"Claimants did not obtain the jus in rem, and, according to the great weight of authority, the right of capture was superior."<br />
<br />
Justice Foster, in Jacobs v. Knapp:<br />
<br />
"That statute provides that 'any person who labors at cutting, hauling, or drawing wood, bark, logs, or lumber, shall have a lien thereon for his personal services, which lien shall take precedence of all other claims except liens on account of public taxes, to continue sixty days after the services are performed, and may be secured by attachment'.<br />
<br />
"At the common law the lien of a mechanic, manufacturer, or other laborer 'is neither a jus ad rem nor a jus in re: that is to say, it is not a right of property in the thing itself, or a right of action to the thing itself;' but it is a security, derived from a 'general principle of the common law, which gives to a man who has the lawful possession of a thing and has expended his money or his labor upon it, at the request of the owner, a right to retain it until his demand is satisfied' . . .<br />
<br />
"A lien, as we have seen, is a personal right, as well as an interest which can only be created by the owner, or by his authority. If Fifield, by virtue of his contract with the defendants, had a lien upon the wood, the plaintiff could acquire no lien upon the property through him. The plaintiff, as a creditor of Fifield, could not attach and hold, as against the owner, at the common law, the property in which Fifield had but the qualified interest of a pledgee. Lovett v. Brown, 40 N. H. 511. Neither is a lien for the price of labor performed on an article assignable. Bradley v. Spofford, 23 N. H. 447. . . .<br />
<br />
"The statutes of liens have enlarged the privileges of the party who, at common law, could only as bailee avail himself of the lien, by substituting, in the enumerated cases, attachment of the property for retention of possession; but it would be quite anomalous to regard this process of attachment as applying in favor of a stranger against a party with whom the plaintiff never contracted, and who could in no proper sense be regarded as an attaching creditor. . . ."<br />
<br />
The passage from Mr. Justice Foster—the last of the above quotations—seems open to comment. If at common law the lien of the mechanic, manufacturer or other laborer consists of the "right to retain" the "thing" in his possession or, to use Mr. Justice Foster's own later and more discriminating term, a "privilege" of retaining possession, this is certainly a "privilege" relating to a "thing." More than that, such privileges are multital privileges, or privileges in rem, existing not only against the owner of the chattel but also against all persons in general, and correlating with no-rights in the latter. These multital privileges relate directly to the physical "thing"; and they are "rights" in the very broad sense of that term. It is difficult, therefore, to see why the term jus in re should not be applicable. For the latter term does not seem to be confined to rights in the sense of claims, this being shown by the above-quoted opinion of Mr. Justice Curtis, whose characterization of common-law liens differs from that of Mr. Justice Foster. It is also clear that the lienor has, by virtue of his possession per se, rights in rem against all others that they shall not disturb that possession or harm the object possessed. These last are rights or claims literally relating to the thing; and, therefore, so far at least as the literal meaning of jus in re is concerned there seems to be no reason why the latter expression should not be applied. It is true that if the lienor were to surrender possession he would thereby divest himself of his privilege (against the owner) and his rights, or claims, against the owner and others; but while those relations exist they concern the thing, and that fact is obviously not negatived by the possibility of their being divested.<br />
<br />
The passage last quoted from Mr. Justice Markby and also the extracts from the opinions of Lord Kinnear and Mr. Justice Curtis show that those rights in rem which directly relate to things—land, vessels, etc.—instead of being called jus in re are, occasionally denominated "reed"—a term meaning literally, of course, "relating to a thing." "Real rights" in this sense are opposed to rights in personam relating to things. Thus, e.g., if A is owner of a horse, he has jus in re or "real rights"; if, on the other hand, X is under contract to transfer the ownership of a horse to A, the latter has that sort of right in personam which would sometimes be called jus ad rem, or "personal right" In the restricted sense now referred to, it seems clear that real rights as a class also exclude both rights in personam and rights in rem that do not relate directly to things, or tangible objects. The following passages may be considered with advantage:<br />
<br />
1914, Professor E. C. Clark, History of Roman Law: Jurisprudence:<br />
<br />
"Jura realia and personalia are expressions occasionally used by modern civilians as adjectival forms for jura in rem and in personam, but only as confined to Property Law. (e.g., the translator of Mackeldey, Pr. ii. § 15. Austin (T. and N. ii. 5, pp. 977, 978; St. Note on Led. 14, p. 184) identifies the pairs without the above qualification.) This at least seems to be the meaning given by Savigny to jura re alia, if represented by the corresponding German dingliche Rechte. (System, I, § 56, p. 369. Alle mogliche Rechte an Sachen .... fassen wir unter dem gemeinsamen Nameri der dinglichen Rechte zusammen.)"<br />
<br />
1855, Mr. Justice B. R. Curtis, in The Young Mechanic:<br />
<br />
"The distinction between a jus in re and a jus ad rem was familiar to lawyers of the middle ages, and is said then to have first come into practical use, as the basis of the division of rights into real and personal. Sanders' Intro, to Just. p. 49. A jus in re is a right, or property in a thing, valid as against all mankind. A jus ad rem is a valid claim on one or more persons to do something, by force of which a jus in re will be acquired. Pothier, Traite du Droit de Domaine, ch. Pretences; Hugo, His. du Droit Rom. vol. 1, p. 118."<br />
<br />
1914, Lord Kinnear, in Bank of Scotland v. Macleod:<br />
<br />
"But to extend Lord Westbury's phrase so as to make it cover personal obligations which do not affect the real right of the obligor seems to me altogether extravagant. It was maintained in argument that every obligation with reference to any property or fund which involves a liability to account fell within the principle. If that were so every imperfect security, however invalid as a real right, would be effectual as a trust."<br />
<br />
Even when restricted as above indicated, the pair of terms, "real" and "personal," seems an undesirable one for English-speaking lawyers and judges because those words are already definitely appropriated to different and independent classifications and are constantly applied in connection with the latter. Thus, e.g., we have "real property" and "personal property"; and this classification is obviously not parallel with that of "real rights" and "personal rights"—both of the latter terms being applicable either to "personal property" relations or to "real property" relations. Then too, the expression "personal rights" is especially misleading in its connotation because, literally, it tends to suggest rights concerning a person as the object to which the rights relate, that is, either the person who holds the rights or some other person. It is therefore most fortunate that the pair of terms, "real rights" and "personal rights," is not at all common in judicial opinions or in legal treatises. Over against this, however, it must be recognized that courts not infrequently use a somewhat similar pair of terms, viz., the expression "personal rights" or "personal claims" in opposition to some such expression as "property rights," "title to land," "interest in the thing," etc.<br />
<br />
Finally, as regards this particular matter, it must be regretted that some authors, though no courts whatever so far as has been observed, use the terms "real rights" and "personal rights" as exact equivalents, respectively, for all kinds of rights in rem (whether relating directly to things or persons or to neither) and all kinds of rights in personam. It is greatly to be hoped that such an unusual and, for the English law, misleading Use of terms will not become at all common.<br />
<br />
(c) A single multital right, or claim, (right in rem) correlates with a duty resting on one person alone, not with many duties (or one duty) resting upon all the members of a very large and indefinite class of persons: Though fairly implicated with what has been said in the "preliminary" explanation of ideas and terms, this proposition now requires more detailed consideration; for it represents a considerable departure from the explanations or analyses to be found in treatises on jurisprudence or in books on particular branches'of the law. Let us first have definitely before us some typical passages:<br />
<br />
1832, Professor John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law:<br />
<br />
"All rights reside in persons, and are rights to acts or forbearances on the part of other persons. ...<br />
<br />
"The essentials of a right in rem are these:<br />
<br />
"It resides in a determinate person, or in determinate persons, and avails against other persons universally orgenerally. Further, the duty with which it correlates, or to which it corresponds, is negative: that is to say, a duty to forbear or abstain. . . .<br />
<br />
"The duty which correlates with [a right in rem] attaches upon persons generally."<br />
<br />
1871, Mr. Justice Markby, Elements of Law:<br />
<br />
"The persons to whom a right in rem belongs may be changed to any extent within the limits allowed by the law, but the persons upon whom the duty corresponding to a right in rem is imposed cannot be changed, because all persons are under that duty."<br />
<br />
1880, Professor Thomas Erskine Holland, Elements of Jurisprudence:<br />
<br />
"A right is available either against a definite person or persons, or against all persons indefinitely. . . .<br />
<br />
"This distinction between rights has been expressed by calling a right of the definite kind a right in personam, of the indefinite kind a right in rem"<br />
<br />
1902, Mr. Solicitor-General Salmond, Jurisprudence:<br />
<br />
"A real right corresponds to a duty imposed on persons in general. . . . The indeterminate incidence of the duty which corresponds to a real right, renders impossible many modes of dealing with it which are of importance in the case of personal rights."<br />
<br />
1915, Professor Harlan Fiske Stone, Law and its Administration:<br />
<br />
"One may have a right against all members of the community indifferently. Thus one has the right not to have his person or his property unlawfully interfered with, and this right exists generally against all members of the community."<br />
<br />
1916, Professor Samuel Williston, Is the Right of an Assignee of a Chose in Action Legal or Equitable?<br />
<br />
"Though legal ownership is conceived fundamentally as a right good against all the world, actual instances of such ownership are often much more narrowly limited. The owner of a chattel which has been stolen from him is likely to find his right against the world considerably qualified if the thief is in a place where the principles of market overt prevail."<br />
<br />
In opposition to the ideas embodied in the passages just given, it is submitted that instead of there being a single right with a single correlative duty resting on all the persons against whom the right avails, there are many separate and distinct rights, actual and potential, each one of which has a correlative duty resting upon some one person. Repeating a hypothetical case put above, let us suppose that A is the owner of Blackacre and X is the owner of Whiteacre. It may be assumed further that, in consideration of $100 actually paid by A to B, the latter agrees with A never to enter on X's land, Whiteacre; also that C and D, at the same time and for separate considerations, make respective similar agreements with A. In such a case A's respective rights against B, C, and D are clearly rights in personam, or paucital rights. Surely no one would assert that A has only a single right against B, C, and D, with only a single or unified duty resting on the latter. A's right against B is entirely separate from the other two. B may commit a breach of his duty, without involving any breach of Cs duty by C or any breach of D's duty by D. For, obviously, the content of each respective duty differs from each of the others. To make it otherwise C and D would have to be under a duty or duties (along with B) that B should not enter on X's land. Even if that were the case, there would be said to be three separate duties unless B, C, and D bound themselves so as to create a so-called joint obligation. In the latter case alone would there be said to be a single right and a single (joint) duty. Going beyond this direct analysis of the situation, it seems clear that the three respective "right—duty" relations of A and B, A and C, and A and D respond to every test of separateness and independence. A might discharge B from his duty to A, thus (in equivalent terms) creating a privilege of entering as against A (not as against X, of course); yet, obviously, the respective duties of C and D would continue the same as before.<br />
<br />
Point for point, the same considerations and tests seem applicable to A's respective rights in rem, or multital rights, against B, C, D, and others indefinitely that they, respectively considered, shall not enter on Blackacre. It is not a case of one joint duty of the same content resting on all—e.g., that B should not enter on Blackacre. Consistently with this view, A might, e.g., extinguish B's duty or, in other words, grant B the privilege of entering by giving "leave and license" to do so. In such event, of course, the respective duties of C, D, E, and all others would continue to exist, precisely as before.<br />
<br />
In order to see even more clearly that the supposed single right in rem correlating with "a duty" on "all" persons really involves as many separate and distinct "right—duty" relations as there are persons subject to a duty, it may be worth while to reverse the situation somewhat, and consider, in anticipation of a more general treatment at a later point, the subject of duties in rem, or multital duties. Thus, e.g., X is under duty not to strike R, S, T, or any other ordinary member of the community. Are we to say that, as regards these many persons, X has but a single duty, and that, correlatively, there is but a single right held by R, S, T, and all the others? Manifestly not, for each one of these persons has a distinct and independent right; and any one of such independent rights might cease to exist without in the least affecting the others. If, e.g., R threatens bodily harm to X, R's right that X shall not strike him becomes thereby extinguished, and a no-right in R substituted; or, correlatively, in such contingency, X's duty to R ceases, and X acquires a privilege of self-defense against R. But such change in no way affects the entirely distinct relations existing between X and the various other persons involved. As regards the separateness and relativity of all "right—duty" relations, the following judicial reasoning seems accurate and persuasive:<br />
<br />
1908, Mr. Justice Connor, in McGhee v. R. Co.:<br />
<br />
"It is elementary that plaintiff had no cause of action against defendants for placing the dynamite in the shanty. He must establish some relation between defendants and himself from which a duty to him is imposed upon defendants. 'The expression ((duty" properly imports a determinate person to whom the obligation is owing, as well as the one who owes the obligation. There must be two determinate parties before the relationship of obligor and obligee of a duty can exist.' "<br />
<br />
With this passage we may well compare the instructive opinion of an eminent English judge emphasizing the distinct and relative character of each "privilege—no-right" relation connected with a given matter, his observations being equally applicable to "right—duty" relations:<br />
<br />
1906, Lord Collins, M. R., in Thomas v. Bradbury, Agnew, & Co., Ltd.:<br />
<br />
"The right" [privilege] "of fair comment, though shared by the public, is the right" [privilege] "of every individual who asserts it, and is, qua him, an individual right whatever name it be called by, and comment by him which is colored by malice cannot from his standpoint be deemed fair. He, and he only, is the person in whose motives the plaintiff in the libel action is concerned, and if he, the person sued, is proved to have allowed his view to be distorted by malice, it is quite immaterial that somebody else might without malice have written an equally damnatory criticism. The defendant, and not that other person, is the party sued."<br />
<br />
If, then, the foregoing line of reasoning be sound, the following points would seem to be reasonably clear: A right in rem, or multital right, correctly understood, is simply one of a large number of fundamentally similar rights residing in one person; and any one of such rights has as its correlative one, and only one, of a large number of general, or common, duties,—that is, fundamentally similar duties residing respectively in many different persons. Similarly, a duty in rem, or multital duty, is one of a large number of fundamentally similar duties residing in one person; and any one of such duties has as its correlative one of a large number of general, or common, rights, or claims,—that is, fundamentally similar rights, or claims, residing respectively in many different persons. It is therefore to be hoped that, instead of continuing to be used to indicate the entire multiplicity of separate and independent rights, or claims, that a person may have against many others, the term right in rem may gradually come to be used to represent one, and only one, of this multiplicity of distinct rights. Whatever be the fate of the concept and term, right in rem, in this regard, it is surely of the utmost importance that the various possible analyses and meanings involved be carefully pondered and understood; and, in the meanwhile, the term "multital"—free as it is from any previous hazy connotations—will without question serve definitely to indicate one, and one only, of such a multiplicity of rights as is now under consideration.<br />
<br />
(d) A multital right, or claim, (right in rem) should not be confused with any co-existing privileges or other jural relations that the holder of the multital right or rights may have in respect to the same subject-matter: As already incidentally noticed, it is feared that the exact nature of multital rights has been greatly obscured not only by the habitual tendency to treat a multiplicity of fundamentally similar rights, or claims, as if they were only one, but also by the equally strong tendency to include under the hazy blanket term, right in rem, especially in the case of tangible objects, the multiplicity of privileges and other jural relations that the holder of the multital right or rights may have.<br />
<br />
Suppose, for example, that A is fee-simple owner of Blackacre. His "legal interest" or "property" relating to the tangible object that we call land consists of a complex aggregate of rights (or claims), privileges, powers, and immunities. First: A has multital legal rights, or claims, that others, respectively, shall not enter on the land, that they shall not cause physical harm to the land, etc., such others being under respective correlative legal duties. Second: A has an indefinite number of legal privileges of entering on the land, using the land, harming the land, etc., that is, within limits fixed by law on grounds of social and economic policy, he has privileges of doing on or to the land what he pleases; and correlative to all such legal privileges are the respective legal no-rights of other persons. Third: A has the legal power to alienate his legal interest to another, i.e., to extinguish his complex aggregate of jural relations and create a new and similar aggregate in the other person; also the legal power to create a life estate in another and concurrently to create a reversion in himself; also the legal power to create a privilege of entrance in any other person by giving "leave and" license"; and so on indefinitely. Correlative to all such legal powers are the legal liabilities, in other persons,—this meaning that the latter are subject, nolens volens, to the changes of jural relations involved in the exercise of A's powers. Fourth: A has an indefinite number of legal immunities, using the term immunity in the very specific sense of non-liability or non-subjection to a power on the part of another person. Thus he has the immunity that no ordinary person can alienate A's legal interest or aggregate of jural relations to another person; the immunity that no ordinary person can extinguish A's own privileges of using the land; the immunity that no ordinary person can extinguish A's right that another person X shall not enter on the land or, in other words, create in X a privilege of entering on the land. Correlative to all these immunities are the respective legal disabilities of other persons in general.<br />
<br />
In short, A has vested in himself, as regards Blackacre, multital, or in rem, "right—duty" relations, multital, or in rem, "privilege—no-right" relations, multital, or in rem, "power—liability" relations, and multital, or in rem, "immunity—disability" relations. It is important, in order to have an adequate analytical view of property, to see all these various elements in the aggregate. It is equally important, for many reasons, that the different classes of jural relations should not be loosely confused with one another. A's privileges, e.g., are strikingly independent of his rights or claims against any given person, and either might exist without the other. Thus A might, for $100 paid to him by B, agree in writing to keep off Blackacre. A would still have his rights or claims against B, that the latter should keep off, etc.; yet, as against B, A's own privileges of entering on Blackacre would be gone. On the other hand, with regard to X's land, Whiteacre, A has, as against B, the privilege of entering thereon; but, not having possession, he has no right, or claim, that B shall not enter on Whiteacre.<br />
<br />
Not only as a matter of accurate analysis and exposition, but also as a matter of great practical consequence and economic significance, the property owner's rights, or claims, should be sharply differentiated from his privileges. It is sometimes thought that A's rights, or claims, are created by the law for the sole purpose of guarding or protecting A's own physical user or enjoyment of the land, as if such physical user or enjoyment of the land were the only economic factor of importance. A moment's reflection, however, shows that this is a very inadequate view. Even though the land be entirely vacant and A have no intention whatever of personally using the land, his rights or claims that others shall not use it even temporarily in such ways as would not alter its physical character are, generally, of great economic significance as tending to make others compensate A in exchange for the extinguishment of his rights, or claims or in other words, the creation of privileges of user and enjoyment. This has been emphasized by an eminent English judge:<br />
<br />
1874, Lord Selborne, Chancellor, in Goodson v. Richardson:<br />
<br />
"It is said that the objection of the plaintiff to the laying of these pipes in his land is an unneighborly thing, and that his right is one of little or no value, and one which Parliament if it were to deal with the question, might possibly disregard. What Parliament might do, if it were to deal with the question, is, I apprehend, not a matter for our consideration now, as Parliament has not dealt with the question. Parliament is, no doubt, at liberty to take a higher view upon a balance struck between private rights and public interests than this Court can take. But with respect to the suggested absence of value of the land in its present situation, it is enough to say that the very fact that no interference of this kind can lawfully take place without his consent, and without a bargain with him, gives his interest in this land, even in a pecuniary point of view, precisely the value which that power of veto upon its use creates, when such use is to any other person desirable and an object sought to be obtained."<br />
<br />
Even so able and cautious a thinker as Austin seems to have confused legal privileges with legal rights (in the sense of claims), and also, at times, to have confused mere physical power and liberty both with legal privileges and with legal rights. Probably because of the very failure to make these necessary and important discriminations, he appears to have overlooked, or at least seriously underrated, the practical and economic significance of the landowner's "right—duty" relations considered wholly apart from their being guardians of the "privilege—no-right" relations, or protectors of the physical liberty and power involved in the exercise of such legal privileges:<br />
<br />
1832, Professor John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law:<br />
<br />
"Now the ends or purposes of different rights are extremely various. The end of the rights in rem which are conferred over things, is this: that the entitled party may deal with, or dispose of, the thing in question in such or such a manner and to such or such an extent. In order to that end, other persons generally are laid under duties to forbear or abstain from acts which would defeat or thwart it. . . .<br />
<br />
"As I stated in my last lecture, I mean by property or dominion (taken with the sense wherein I use the term, for the present) any such right in rem (of limited or unlimited duration) as gives to the party in whom it resides an indefinite power or liberty of using or dealing with the subject: A power or liberty of using or dealing with the subject which is not capable of exact circumscription or definition; which is merely limited, generally and indefinitely, by the sum of the duties (relative and absolute) incumbent on the owner or proprietor. . . .<br />
<br />
"The power of user and the power of exclusion are equally rights to forbearances on the part of other persons generally. By virtue of the right or power of indefinitely using the subject, other persons generally are bound to forbear from disturbing the owner in acts of user. By virtue of the right or power of excluding other persons generally, other persons generally are bound to forbear from using or meddling with the subject. The rights of user and exclusion are so blended, that an offence against the one is commonly an offence' against the other. I can hardly prevent you from ploughing your field, or from raising a building upon it, without committing, at the same time, a trespass. And an attempt on my part to use the subject (as an attempt, for example, to fish in your pond) is an interference with your right of user as well as with your right of exclusion. But an offence against one of these rights is not of necessity an offence against the other. If, for example, I walk across your field, in order to shorten my way to a given point, I may not in the least injure you in respect of your right of user, although I violate your right of exclusion. Violations of the right of exclusion (when perfectly harmless in themselves) are treated as injuries or offences by reason of their probable effect .on the rights of user and exclusion. A harmless violation of the right of exclusion, if it passed with perfect impunity, might lead, by force of the example, to such numerous violations of the right as would render both rights nearly nugatory."<br />
<br />
In these various passages, and especially in the last one, Austin uses the term "right" indiscriminately and confusedly to indicate both those jural relations that are legal rights, or claims, and those that are legal privileges—a lapse all the more surprising in view of the fact that the learned and painstaking author had previously been careful to emphasize the proposition that "the term 'right' and the term 'relative duty' signify the same notion considered from different aspects." Such a delimitation of "right" clearly excludes "legal privilege"; for the correlative of the latter, or "the same notion" from a "different aspect" is, of course, "no-right" or "no-claim."<br />
<br />
More or less similar blending of legal concepts and terms in connection with the subject of rights in rem seems to find place not only in well-known works on jurisprudence but also in various treatises or monographs on particular branches of the law. Indeed it is not unlikely that the later writers have in this respect but followed the lead of Austin, as they have in so many other matters of legal analysis. The following passages will serve to show how general is the usage referred to, and, it is believed, will also indicate how such a usage tends to hinder and obscure correct analysis and clear understanding of legal problems:<br />
<br />
1871, Mr. Justice Markby, Elements of Law:<br />
<br />
"Thus in the case of a contract between A and B, the right of A to demand performance of the contract exists against B only; whereas in the case of ownership, the right to hold and enjoy the property exists against persons generally. This distinction between rights is marked by the use of terms derived from the Latin: the former are called rights in personam; the latter are called rights in rem."<br />
<br />
1880, Professor Thomas Erskine Holland, Elements of Jurisprudence:<br />
<br />
"A right is available either against a definite person or persons, or against all persons indefinitely. A servant, for instance, has a right to his wages for the work he has done, available against a definite individual, his master; while the owner of a garden has a right to its exclusive enjoyment available against no one individual more than another, but against everybody".<br />
<br />
1902, Mr. Solicitor-General Salmond, Jurisprudence:<br />
<br />
"My right to the peaceable occupation of my farm is a real right, for all the world is under a duty towards me not to interfere with it. ... I have a real right to the use and occupation of my own house; I have a personal right to receive accommodation at an inn. . . ."<br />
<br />
1874, Mr. Stephen Martin Leake, Law of Property in Land:<br />
<br />
"Rights to things, jura in rem, have for their subject some material thing, as land or goods, which the owner may use or dispose of in any manner he pleases within the limits prescribed by the terms of his right. A right of this kind imports in all persons generally the correlative negative duty of abstaining from any interference with the exercise of it by the owner; and by enforcing this duty the law protects and establishes the right. But a right of this kind does not import any positive duty in any determinate person, or require any act or intervention of such person for its exercise and enjoyment."<br />
<br />
1887, Professor James Barr Ames, Purchase for Value without Notice:<br />
<br />
"The most striking difference between property in a thing and property in an obligation is in the mode of enjoyment. The owner of a house or a horse enjoys the fruits of ownership without the aid of any other person. The only way in which the owner of an obligation can realize his ownership is by compelling its performance by the obligor. Hence, in the one case, the owner is said to have a right in rem, and, in the other, a right in personam"<br />
<br />
1915, Professor Harlan Fiske Stone, Law and its Administration:<br />
<br />
"It will be noted that the essential difference between a right in remand a right in personam is that a right in rem may be enjoyed by the possessor of it without the intervention or aid of any other person, whereas the possessor of a right in personam can enjoy his possession or ownership of it only by compelling the obligor to perform the obligation which gives use to the right. . . .<br />
<br />
"Rights in rem include generally all of those rights commonly spoken of as property rights; that is to say, rights to possess, use, and enjoy things, which rights are good and enforceable against all the world".<br />
<br />
1916, Professor Samuel Williston, Is the Right of an Assignee of a Chose in Action Legal or Equitable?<br />
<br />
"Though legal ownership is conceived fundamentally as a right good against all the world, actual instances of such ownership are often much more narrowly limited."<br />
<br />
(e) A multital primary right, or claim, (right in rem) should, regarding its character as such, be carefully differentiated from the paucital secondary right, or claim, (right in personam) arising from a violation of the former: Using again the hypothetical case involving A as owner of Blackacre, it is clear that if B commits a destructive trespass on A's land, there arises at that moment a new right, or claim, in favor of A,—i.e., a so-called secondary right that B shall pay him a sum of money as damages; and of course B comes simultaneously under a correlative duty. Similarly if C commits a battery on A, or if D alienates the affections of A's wife; and so on indefinitely. In each of these cases the secondary right—e.g., that against B—is a paucital right, or claim, i.e., a right in personam. The entire "right—duty" relation would be one of the class of relations in personam designated in Roman law by the term obligatio. More specifically, the relation would be known as an obligatio ex delicto. This is brought out by the language of an eminent judge:<br />
<br />
1904, Mr Justice Holmes, in Slater v. Mexican National R. R. Co.:<br />
<br />
"We assume for the moment that it was sufficiently alleged and proved that the killing of Slater was a negligent crime within the definition of Article 11 of the Penal Code, and, therefore, if the above sections were the only law bearing on the matter, that they created a civil liability to make reparation to any one whose rights were infringed. . . .<br />
<br />
"The theory of the foreign suit is that . . . the act complained of . . . gave rise to an obligation, an obligatio . . ."<br />
<br />
This analysis seems applicable even in the case of a tort consisting of wrongfully dispossessing an owner of a tangible movable object. Thus, if Y wrongfully takes possession and control of X's horse, there arises a duty in Y to return the animal to X; and, of course, X gets a correlative right. The latter is a paucital right, or right in personam; for there are no fundamentally similar rights against persons in general. This is true even though, of course, X's rights against others that they shall not convert or harm the horse while in Y's possession are rights in rem. The following passage is apposite:<br />
<br />
1900, Mr. Chief Justice Holmes, in Tyler v. Court of Registration:<br />
<br />
"But it is said that this is not a proceeding in rem. It is certain that no phrase has been more misused. In the past it has had little more significance than that the right alleged to have been violated was a right in rem. Austin thinks it necessary to quote Leibnitz for the sufficiently obvious remark that every right to restitution is a right in personam."<br />
<br />
That this distinction is not always carefully observed may be seen from a consideration of the quotations next to be presented.<br />
<br />
(f) A multital primary right, or claim, (right in rem) should not, regarding its character as such, be confused with, or thought dependent on, the character of the proceedings by which it (and the secondary right arising from its violation) may be vindicated: Owing to limitations of space this matter cannot be given here all the attention that it deserves; and the more complete discussion must be reserved for another place. Some of the more important points should, however, be noticed in the present context.<br />
<br />
At least two tendencies are occasionally to be observed by way of confusing the nature of primary rights (as in personam or in rem) with the character of the proceedings by which they may be vindicated. Both of these tendencies are believed to befounded on seriously erroneous notions that ought, if possible, to be dissipated. Each of them will, therefore, be briefly discussed.<br />
<br />
First: It is sometimes supposed that to have a right in rem concerning a tangible object of which the owner has been wrongfully dispossessed means that he may recover possession of the object itself, by self-help or action, from the first wrongdoer or any subsequent party holding possession as vendee or bailee of the first wrongdoer, or as wrongful taker from the latter. Thus:<br />
<br />
1890, Professor James Barr Ames, Disseisin of Chattels:<br />
<br />
"Trespass, however, was a purely personal action; it sounded only in damages. The wrongful taking of chattels was, therefore, a more effectual disseisin than the ouster from land. The dispossessed owner of land, as we have seen, could always recover possession by an action. Though deprived of the res, he still had a right in rem. The disseisor acquired only a defeasible estate. One whose chattel had been taken from him, on the other hand, having no means of recovering it by action, not only lost the res, but had no right in rem. The disseisor gained by his tort both the possession and the right of possession; in a word, the absolute property in the chattel taken. . . .<br />
<br />
"Today, as everyone knows, neither a trespasser, nor one taking or buying from him, nor the vendee of a bailee, either with or without delivery by the latter, acquires the absolute property in the chattel taken or bailed. The disseisee of goods, as well as the disseisee of land, has a right in rem. The process by which the right in personam has been transformed into a real right may be traced in the expansion of the writs of replevin and detinue, and is sufficiently curious t6 warrant a slight digression. . . .<br />
<br />
"The disseisee's right in rem, however, was still a qualified right; for replevin was never allowed in England against a vendee or bailee of a trespasser, nor against a second trespasser. It was only by the later extension of the action of detinue that a disseisee finally acquired a perfect right in rem. Detinue, although its object was the recovery of a specific chattel, was originally an action ex contractu. It was allowed only against a bailee or against a vendor, who after the sale and before delivery was in much the same position as a bailee. . . .<br />
<br />
"So long as the adverse possession continues, the dispossessed owner of the chattel has, manifestly, no power of present enjoyment. Has he lost also the power of alienation? His right in rem, if analyzed, means a right to recover possession by recaption or action".<br />
<br />
As indicated by the passages quoted, Professor Ames seems to have thought that for the owner, after dispossession, to have rights in rem would require the remedy of specific recovery of the tangible object. This, however, seems to involve a blending or confusing of substantive relations and adjective relations. If A, the owner of a tangible movable object, is dispossessed by B, A, under modern authorities, has rights against all persons that the object should not be harmed or "converted"; and these rights could be vindicated by an action on the case or by an action of trover, as the facts might demand. It is clear, moreover, that such rights would exist, as multital rights, or rights in rem, even though no possessory remedy were open to A.<br />
<br />
If we may judge by the passages quoted above, it seems not unlikely that Professor Ames, because of assuming that a right in rem concerning physical objects involves necessarily, in case of dispossession, the remedy of recovery of possession, would apparently have asserted that in the early days even a chattel owner in actual possession did not have "a right in rem"; and it is clear, in any event, that the possibility of regaining possession by action or self-help is frequently assumed to be of the essence of "a right in rem".<br />
<br />
This, however, seems a very inadequate and inexact view. Even in the days when wrongful dispossession operated virtually to divest the legal interest of the chattel owner, it was still true that prior to any such dispossessing of the physical object and concomitant divesting of the legal interest he had rights in rem against persons in general that they should not harm the object or take the object from the owner; and these respective multital rights, or rights in rem, could, as Professor Ames himself points out, be vindicated by trespass or other action brought to secure damages. In other words, the chattel owner's rights, so long as he had them, were rights in rem, even though in the early period now referred to (middle of the thirteenth century) he was subject to the liabilities of their being virtually divested by a wrongful taking,—there being, correlatively, a power in the wrongdoer thus to divest the interest of the chattel owner.<br />
<br />
Fundamentally similar legal powers and correlative liabilities involving the divesting of "legal" and "equitable" rights in rem (and other jural relations belonging to the particular aggregates involved) have existed from the earliest times. Such powers are created by the law on various grounds of policy and convenience,—the teleology underlying each particular instance not being difficult to discover. In this place a bare enumeration of some of such powers must suffice: 1. The power of sale in market overt to a bona fide purchaser; 2. The power of even a thief having possession of money but not, of course, the "ownership" thereof, to create a good title in a bona fide "purchaser"— the whole country being in this case, so to say, "market overt" because of the necessity of free circulation of money, and it being too inconvenient for the transferror to produce or the transferee to examine an "abstract of title"; 3. The power or powers of a grantor and second grantee of realty, under the recording acts, to extinguish the interest of the first grantee by a conveyance to the second grantee as an innocent purchaser and the prior recording of the latter's deed; 4. The statutory power of a factor, in certain cases, to create a good title in an innocent purchaser; 5. The power of a duly appointed agent, in certain cases, to sell chattels to an innocent purchaser, even after his factual authorization to sell has been revoked by the principal; 6. The power of a trustee to convey an unencumbered "legal title" to a bona fide purchaser for value without notice,— the equitable rights, privileges, etc., of the cestui que trust being thereby extinguished.<br />
<br />
The foregoing and others that might be mentioned are cases depending on the public policy of securing freedom of alienation and circulation of property in the business world. There may now be mentioned certain other cases dependent on somewhat different teleological considerations: 1. The power of an ordinary agent (while his factual authorization continues) to divest the rights in rem, etc., of his principal and create new and corresponding rights, etc., in the agent's transferee; 2. The power of a donee of a power of appointment to extinguish the rights in rem, etc., of the owner of a vested interest and to create new and corresponding rights, etc., in the transferee; 3. The power of the appropriate officer or officers to alienate property effectually in eminent domain proceedings; 4. The power of a sheriff duly empowered by writ of execution to divest the rights in rem, etc., of the present owner of property and to vest new and corresponding rights, etc., in another; 5. The power of a court, in a statutory proceeding to quiet title, to extinguish the rights in rem, etc., of the present owner and to give new and corresponding rights, etc., to the plaintiff; 6. Various other powers of courts involving the "shifting" of title from one person to another.<br />
<br />
In all these cases it is clear that the present owner has rights in rem, etc., in spite of his liabilities that they may be divested through the exercise of the various powers indicated.<br />
<br />
Second: We must now consider a second form of the same general tendency to assume some rigid interdependence between the nature of a right in rem as such and the character of the proceeding available for its vindication. This erroneous assumption has most often been made in discussions of the question whether there are any instances of equitable rights in rem (multital rights), or, indeed, whether there could, in the very nature of things, be any instances of equitable rights in rem.<br />
Thus:<br />
<br />
1877, Professor C. C. Langdell, Summary of Equity Pleading:<br />
<br />
"The reason why all equitable rights to property are lost the moment the legal ownership is transferred for value to a person who has no notice that it is subject to any equitable rights, will be found in the fundamental nature of equitable jurisdiction, as explained in previous paragraphs. It is only by a figure of speech that a person who has not the legal title to property can be said to be the equitable owner of it. What is called equitable ownership or equitable title or an equitable estate is in truth only a personal claim against the real owner; for equity has no jurisdiction in rem, and cannot, therefore, confer a true ownership, except by its power over the person with whom the ownership resides, i.e., by compelling him to convey."<br />
<br />
1900, Professor C. C. Langdell, Classification of Rights and Wrongs:<br />
<br />
"Can equity then create such rights as it finds to be necessary for the purposes of justice? As equity wields only physical power, it seems to be impossible that it should actually create anything. It seems, moreover, to be impossible that there should be any other actual rights than such as are created by the State, i.e., legal rights. So, too, if equity could create actual rights, the existence of rights so created would have to be recognized by every court of justice within the State; and yet no other court than a court of equity will admit the existence of any right created by equity. It seems, therefore, that equitable rights exist only in contemplation of equity, i.e., that they are a fiction invented by equity for the promotion of justice. Still, as in contemplation of equity such rights do exist, equity must reason upon them and deal with them as if they had an actual existence."<br />
<br />
Circa 1886, Professor James Barr Ames, Lectures on Legal History:<br />
<br />
"A trust, as every one knows, has been enforceable for centuries against any holder of the title except a purchaser for value without notice. But this exception shows that the cestui que trust, unlike the bailor, has not acquired a right in rem.9511 This distinction is, of course, due to the fundamental difference between common-law and equity procedure. The common law acts in rem. The judgment in detinue is, accordingly, that the plaintiff recover the chattel, or its value. Conceivably the common-law judges might have refused to allow the bailor to recover in detinue against a bona fide purchaser, as they did refuse it against a purchaser in market overt. But this would have involved a weighing of ethical considerations altogether foreign to the medieval mode of thought. Practically there was no middle ground between restricting the bailor to an action against his bailee, and giving him a right against any possessor. Equity, on the other hand, acts only in personam, never decreeing that a plaintiff recover a res, but that the defendant surrender what in justice he cannot keep."<br />
<br />
1904, Professor Frederic William Maitland, Trust and Corporation:<br />
<br />
"I think it is better and safer to say with a great American teacher that 'Equity could not create rights in rem if it would, and would not if it could' See Langdell, Harvard Law Review, Vol. 1, p. 60."<br />
<br />
It is difficult to find solid foundation for such assumptions as the foregoing, or to understand how the notions connected therewith could have received such a large following. Are we forced to recognize that mere words—especially if they are Latin words—have such a surprisingly potent tendency to control thought?<br />
<br />
Suppose, once again, that A is owner of Blackacre, and that B drives his automobile over A's lawn and shrubbery. A's primary right in rem is thereby violated, and a secondary right in personam arises in favor of A and against B,—an "obligatio" to use the term of Mr. Justice Holmes. A may sue B at law for damages and get, as a result of the "primary stage" of the proceeding, an ordinary legal judgment in personam for (say) $500. Such judgment would "merge" or extinguish A's secondary right in personam together with B's secondary duty, and would create a (new) judgment obligation—right in personam and correlative duty—for the payment of $500. Such judgment would be binding even though the judgment debtor, B, had no assets whatever." Thus, if B's judgment duty is not performed or discharged, a new action can, in most jurisdictions, be based thereon; though in some of the latter costs are denied to the plaintiff if the new action be brought without special reasons.<br />
<br />
But of course A is not likely to wish merely an indefinite series of judgment obligations. If, therefore, B has property either at the time judgment is rendered or at some later time, a "secondary stage" of the proceedings, beginning with a writ of execution, may be had. That is, the sheriff, under such a writ, has the power and the duty of selling sufficient property of B and applying the proceeds to the satisfaction of the judgment. If the total proceedings culminate in this way, and only if they do so culminate, can we say that there has been a proceeding in rem, or, more specifically, quasi in rem. That is to say, according to the meanings of the phrases in personam and in rem in this particular context, the proceedings from the beginning of the action down to and including the execution sale have a two-fold aspect and effect: (1) the primary stage of the entire proceedings, i.e., down to judgment, is, considered by itself, a proceeding in personam; (2) the primary stage and the secondary stage (from and after judgment) are, considered together, a proceeding quasi in rem with reference to the particular property sold in the execution sale.<br />
<br />
Instead of suing B for damages and receiving a judgment in personam, as above described, A might in some jurisdictions, in case B be absent from the jurisdiction, attach a definite piece of B's property; and ultimately this might be sold to satisfy A's claim for damages. In this case the entire proceeding, since its only effect is to extinguish B's ownership of the very property attached (if any he had) and create new and corresponding ownership in the execution purchaser, is a proceeding quasi in rem.<br />
<br />
It will thus be seen that, even in the law courts the vindication of primary rights in rem may, according to the circumstances, be by procedings in personam, or by proceedings quasi in rem, or by both forms of proceeding (primary and secondary stages of the ordinary action at law). It is equally obvious that a primary right in personam, e.g., A's right that B pay him $10,000, may frequently be vindicated only by an attachment proceeding,— i.e., one quasi in rem.<br />
<br />
The point that the primary rights may be in rem, although the vindication proceedings are in personam in the special sense that such phrase has in the present context, is often brought out in admiralty cases. Thus:<br />
<br />
1907, Mr. Justice Holmes, in The Hamilton:<br />
<br />
"We pass to the other branch of the first question: whether the state law, being valid, will be applied in the admiralty. Being valid, it created an obligatio, a personal liability of the owner of the Hamilton, to the claimants. Slater v. Mexican National R. R. Co., 194 U. S. 120, 126. This, of course, the admiralty would not disregard, but would respect the right when brought before it in any legitimate way. Ex parte McNeil, 13 Wall. 236, 243. It might not give a proceeding in rem, since the statute does not purport to create a lien. It might give a proceeding in personam".<br />
<br />
Let us now suppose, in the Blackacre case, that instead of suing at law (after B has committed a destructive trespass), A secures from an equity court, ab initio, an injunction against B. The decree of the court here (end of "primary stage" of the equitable proceeding) would result in imposing a (new) duty on B not to trespass on Blackacre; and, correlatively, A would have a (new) equitable right. This first stage of the equitable proceeding would be in personam in the same general sense that the primary stage of the law court's is in personam. If B fails to fulfill the negative duty imposed by the injunction, there will ordinarily occur a "secondary stage' resulting in imprisonment for contempt. So far as this is said to be "enforcement" or procedure in personam, it involves a different and more literal use of the phrase in personam than in any of the instances previously considered. But the point for special emphasis here is that A's primary rights in rem are now being vindicated exclusively by equitable proceedings that are in personam in one sense so far as the primary stage is concerned and in personam in a different sense so far as the secondary stage is concerned.<br />
<br />
On what possible ground, therefore, even assuming that equity could "act only in personam" could it be said that for that reason there could be no equitable primary rights in rem, i.e., multital rights? If the usual legal proceedings were abolished, and A could vindicate his Blackacre rights in rem only in equity, would they thereby cease to be rights in rem and become only rights in personam?<br />
<br />
Suppose, indeed, that we have a devise of Whiteacre to X for life, with remainder in fee to Y if, and only if, Y survives Z. Until Z's death before the death of X, Y has, obviously, only a contingent remainder. Let us assume, further, that T is threatening a destructive trespass to the premises, including the ruining of the mansion house. Y, the contingent remainderman, has no "legal" rights in rem, for he has no vested rights, etc., but only "possibilities"—i.e., potential rights, privileges, etc.<br />
<br />
Has he not, however, actual, exclusively equitable rights in rem, that is, respective multital rights against T and other persons indiscriminately that they shall not seriously and permanently harm the estate? There are numerous decisions to the effect that Y has an exclusively equitable right that the life tenant, X, shall not commit "waste." It is clear, also, that the reasons are equally great for recognizing exclusively equitable rights against persons in general that they shall not harm the land and defeat the "legal" (i.e., concurrently legal and equitable) rights, privileges, etc., of the remainderman if his estate should ever vest "in interest" and, ultimately, in "possession and enjoyment,"—that is, exclusively equitable multital rights, or rights in rem; and the dicta in the cases relating to waste afford strong support to this conclusion. Similarly, suppose that J conveys the absolute legal title of Greenacre to K to secure a debt of $10,000, the agreement being that K is to be entitled to possession until the maturity of the debt and that when the debt is paid K is to reconvey the absolute legal title to J. While K is thus in possession, M threatens to cut down the ornamental trees on the place. If the threatened acts were committed, J would of course have no legal remedy, since the "legal" rights in rem, (i.e., rights concurrently legal and equitable) are now vested in K. It would, however, seem clear on principle that J is entitled to an injunction against M, or, in other words, that J has exclusively equitable multital rights, or rights in rem, relating directly to the physical corpus of the property. The nature of the equitable rights, privileges, powers, and immunities of the cestui que trust is too large a subject for adequate treatment in the present place; and so any further consideration of that interesting subject must be reserved for another occasion. It is hoped, however, that the various classes of rights and remedies already discussed are sufficient to show that the intrinsic nature of substantive primary rights— whether they be rights in rem or rights in personam— is not dependent on the character of the proceedings by which they may be vindicated.<br />
<br />
<div style="text-align: right;">Wesley Newcomb Hohfeld<br />
Yale University, School of Law</div><br />
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</div><div class="Style4" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style4" style="margin-top: 11.05pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Judgment of October 16, 2014<o:p></o:p></span></span></div><div class="Style4" style="line-height: 12pt; text-align: left;"><br />
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</div><div class="Style4" style="margin-top: 10.8pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">First Civil Law Court<o:p></o:p></span></span></div><div class="Style4" style="line-height: 12pt; margin-right: 285.1pt; text-align: left;"><br />
</div><div class="Style4" style="line-height: 12pt; margin-right: 285.1pt; text-align: left;"><br />
</div><div class="Style4" style="line-height: 15.6pt; margin: 8.4pt 285.1pt 0.0001pt 0cm; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Federal Judge Klett (Mrs.), Presiding Federal Judge Kolly Federal Judge Hohl (Mrs.) Federal Judge Kiss (Mrs.) Federal Judge Niquille (Mrs.) Clerk of the Court: Leemann<o:p></o:p></span></span></div><div class="Style6" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style6" style="line-height: 15.85pt; margin-top: 3.85pt; text-align: left;"><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Fenerbahge Spor Kulubu,<o:p></o:p></span></span></div><div class="Style4" style="line-height: 15.85pt; margin-right: 155.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Represented by Dr. Bernhard Berger and Dr. Andreas Gungerich, Appellants<o:p></o:p></span></span></div><div class="Style6" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style6" style="margin-top: 6.25pt; text-align: left;"><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">v.<o:p></o:p></span></span></div><div class="Style4" style="line-height: 12pt; margin-right: 155.5pt; text-align: left;"><br />
</div><div class="Style4" style="line-height: 15.6pt; margin: 4.8pt 155.5pt 0.0001pt 0cm; text-align: left;"><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Union des Associations Europeennes de Football (UEFA) </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Represented by Dr. Jean-Marc Reymond and Mrs. Delphine Rochat, Respondent<o:p></o:p></span></span></div><div class="Style4" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style4" style="margin-top: 6.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Facts:<o:p></o:p></span></span></div><div class="Style4" style="line-height: 12pt; margin-right: 440.65pt; text-align: left;"><br />
</div><div class="Style4" style="line-height: 15.85pt; margin: 4.3pt 440.65pt 0.0001pt 0cm; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">A. A.a.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 0.25pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Fenerbahge Spor Kulubu (the Appellant) is a professional football club based in Istanbul, Turkey. It is a member of the Turkish Football Federation (TFF).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.3pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Union des Associations Europeennes de Football (UEFA, Respondent), based in Nyon, is the European Football Federation to which the Turkish Football Federation belongs. It organizes the UAEFA Champions League, among others.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">A.b.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-top: 0.25pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On February 21 and 26, March 6, 7, and 20 and on April 9, 2011, various football games took place in the framework of the Turkish "Super Lig," during which various people around Fenerbahge Spor Kulubu were paid bribes to lose the game. On April 14, 2011, a new Turkish law (n. 6222) came into force, which made it a criminal offence to manipulate the outcome of games.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On April 17 and 22 and on May 1, 2011, more games of the "Super Lig" took place, during which people around Fenerbahge Spor Kulubu paid money to influence the games.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On May 5, 2011, Fenerbahge Spor Kulubu submitted to UEFA the document "UEFA Club Competitions 2011/2012 Admissions Criteria Form," in which the club affirmed that it had not been involved, directly or indirectly, in any manipulation of games since April 27, 2007.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On May 8, 15, and 22, 2011, additional games of the Turkish Super Lig took place, during which some people connected to Fenerbahge Spor Kulubu paid bribes to the opposing team to lose the game.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 16.1pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On May 22, 2011, Fenerbahge Spor Kulubu won the championship of the "Super Lig" and therefore qualified for the group matches of the UEFA Champions League of the 2011/2012 season.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">A.c.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-top: 0.7pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On July 3, 2011, the Turkish police arrested 61 people in the context of a broad criminal investigation concerning match-fixing in Turkish football. The president and the vice president, among others, were suspected of manipulating games, along with two management board members, the coach, and the finance director of Fenerbahge Spor Kulubu, in connection with various football games of the 2010/2011 season.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On July 11, 2011, the TFF Executive Committee asked the ethics commission to initiate an investigation of match-fixing in Turkish football.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On July 20, 2011, the Turkish prosecution office provided the TFF Ethics Committee with information and evidence in connection with the ongoing criminal proceedings.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.25pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">A.d.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-top: 0.7pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On August 24, 2011, the TFF Executive Committee informed UEFA of its decision to not allow Fenerbahge Spor Kulubu football club to participate in the upcoming season of the Champions League.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On August 25, 2011, the TFF arbitration committee rejected an appeal by Fenerbahge Spor Kulubu against the decision of the TFF executive committee.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In its decisions of September 9 and November 3, 2011, pursuant to an appeal by Fenerbahge Spor Kulubu against the decision of the TFF arbitration commission of August 25, 2011, the Court of Arbitration for Sport (CAS) rejected the applications for provisional remedies.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 16.1pt; margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On December 2, 2011, the Turkish prosecutor arraigned various individuals, including officials of Fenerbahge Spor Kulubu.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On January 3, 2012, the TFF Disciplinary Committee initiated disciplinary proceedings against Fenerbahge Spor Kulubu and other Turkish football clubs and numerous individuals in connection with match-fixing.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.3pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On April 25, 2012, Fenerbahge Spor Kulubu withdrew its appeal to the CAS and the decision of the Turkish federation to not allow Fenerbahge Spor Kulubu to enter the 2011/2012 season of the Champions League became enforceable.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">A.e.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 0.7pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On April 26, 2012, the TFF Ethics Committee released the report of an investigation into the charges that various football games had been manipulated, among others, those in which Fenerbahge Spor Kulubu participated.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.3pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a decision of May 6, 2012, the TFF Disciplinary Committee banned a member of the management board of Fenerbahge Spor Kulubu from any activities related to football for three years and the vice president and the coach for one year.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">B.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">B.a.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On June 4, 2012, UEFA received the report of the TFF Ethics Committee of April 26, 2012. In a letter of June 7, 2012, the Secretary General of UEFA asked the chairman of the Control and Disciplinary Body to initiate disciplinary proceedings against Fenerbahge Spor Kulubu.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On July 2, 2012, the High Criminal Court in Istanbul held that a criminal organization had been created<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">under the leadership of B.___________ , the president of Fenerbahge Spor Kulubu and that officials of<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Fenerbahge Spor Kulubu had participated in manipulating 13 games of the 2010/2011 season. 48 of the 93 accused were found guilty and among them:<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.85pt; text-align: right;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">-</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">B. , the president of Fenerbahge Spor Kulubu (two and a half years imprisonment for<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-left: 36.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">building a criminal organization, three years and nine months and a fine of TRY 1'312'500 for match-fixing);<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.85pt; text-align: right;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">-</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">C. , the vice president of Fenerbahge Spor Kulubu (one year and three months<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-left: 36.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">imprisonment for participating in a criminal organization; one year and 10 months and 14 days for match-fixing);<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.85pt; text-align: right;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">-</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">D. , a member of the management board of Fenerbahge Spor Kulubu (one year and six<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-left: 36.95pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">months imprisonment for participating in a criminal organization; one year and 25 </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">[sic] </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">months and 15 days and a fine of TRY 900'000 for match-fixing);<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.85pt; margin-top: 2.65pt; text-align: right;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">-</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">E. , a member of the management board of Fenerbahge Spor Kulubu (one year and six<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-left: 36.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">months imprisonment for participating in a criminal organization; one year, one month and 15 days and a fine of TRY 135'000 for match-fixing);<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.85pt; text-align: right;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">-</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">F. , the coach of Fenerbahge Spor Kulubu (one year and three months imprisonment for<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-left: 36.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">participating in a criminal organization; 11 months and seven days and a fine of TRY 15'626 for match-fixing);<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.85pt; text-align: right;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">-</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">G. , the finance director of Fenerbahge Spor Kulubu (one year and three months<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-left: 36pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">imprisonment for participating in a criminal organization; one year and three months and a fine of TRY 49'980 for match-fixing).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 16.1pt; margin-top: 3.35pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On May 31, 2013, the UEFA Disciplinary Inspector submitted his report concerning the previous disciplinary proceedings. On June 20, 2013, Fenerbahge Spor Kulubu stated its position in this respect.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a decision of June 22, 2013, the Control and Disciplinary Body of UEFA excluded Fenerbahge Spor Kulubu from the next three UEFA competitions for which the club could qualify, with the third year of the ban suspended for probation.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">B.b.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a decision of June 10, 2013, the UEFA Appeals Body overturned the decision of the Control and Disciplinary Body of June 20, 2013, in part pursuant to an appeal by Fenerbahge Spor Kulubu and limited the ban to just the next two UEFA competitions.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">B.c.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 0.95pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a submission of July 16, 2013, Fenerbahge Spor Kulubu appealed the decision of the UEFA Appeals Body of June 10, 2013, to the CAS and applied for a stay of enforcement. UEFA did not oppose a stay of enforcement.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 4.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On July 18, 2013, Fenerbahge Spor Kulubu advised the CAS that the parties had reached an agreement about the timing of the proceedings, among others.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Also on July 18, 2013, the CAS confirmed the stay of enforcement, in view of the agreement of the parties. Moreover, it took notice of the agreement of the parties to an accelerated procedure pursuant to which the reasons in support of the appeal were to be submitted by July 26, 2013, and the answer to the appeal by August 9, 2013, with the hearing taking place between August 21 and 23, 2013, and a decision issued by August 28, 2013.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On July 26, 2013, Fenerbahge Spor Kulubu submitted its appeal brief, essentially with a submission that the ban issued by the UEFA Appeals Body in its decision of July 10, 2013, should be overturned; and that, in the alternative, the July 10, 2013, decision should be annulled and the matter sent back to the UEFA Appeals Body.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On August 9, 2013, the UEFA submitted its answer to the appeal in which it asked that the appeal be rejected and the decision of the UEFA appeals body confirmed.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">On August 21 and 22, 2013, the hearing took place in Lausanne. 20 people designated by the parties were heard all together; Fenerbahge Spor Kulubu waived the deposition of 13 additional witnesses during the hearing.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 4.1pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">B.d.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In an arbitral award of August 28, 2013, (the reasons being submitted on April 11, 2014) the CAS rejected the appeal and upheld the decision of the UEFA Appeals Body of July 10, 2013.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.35pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">C.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a civil law appeal Fenerbahge Spor Kulubu submits that the Federal Tribunal should annul the CAS arbitral award of August 28, 2013.<o:p></o:p></span></span></div><div class="Style5" style="line-height: 31.7pt; margin-top: 2.9pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Respondent submits that the appeal should be rejected insofar as the matter is capable of appeal. The CAS submits in its observations that the appeal should be rejected.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 0.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant submitted a reply to the Federal Tribunal on August 5, 2014, and the Respondent a rejoinder on August 26, 2014.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">D.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 0.95pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a decision of July 22, 2014, the Federal Tribunal rejected the Appellant's application for a stay of enforcement.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 16.1pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In a decision of September 1, 2014, the Court rejected the application to reconsider the stay of enforcement previously refused and confirmed the decision of July 22, 2014.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 10.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Reasons:<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 4.1pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">1.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">According to Art. 54(1) BGG,<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn2" name="_ftnref2" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[2]</span></sup></span><!--[endif]--></sup></a> the judgment of the Federal Tribunal is issued in an official language,<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn3" name="_ftnref3" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[3]</span></sup></span><!--[endif]--></sup></a> as a rule in the language of the decision under appeal. When the decision was issued in another language, the Federal Tribunal resorts to the official language chosen by the parties. The decision under appeal is in English. As this is not an official language and the parties used German before the Federal Tribunal, the decision of the Federal Tribunal shall be issued in German.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 16.1pt; margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In the field of international arbitration, a civil law appeal is permitted, pursuant to the requirements of Art. 190-192 PILA<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn4" name="_ftnref4" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[4]</span></sup></span><!--[endif]--></sup></a> (SR 291)(Art. 77(1)(a) BGG).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin: 15.35pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">2.1.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The seat of the Arbitral Tribunal is in Lausanne in this case. The Appellant had its seat outside Switzerland at the relevant time (Art. 176(1) PILA). As the parties did not expressly waive Chapter 12 PILA, the provisions of that chapter apply (Art. 176(2) PILA).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.6pt; margin: 15.85pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">2.2.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Only the grievances exhaustively listed in Art. 190(2) PILA are admissible (BGE 134 III 186<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn5" name="_ftnref5" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[5]</span></sup></span><!--[endif]--></sup></a> at 5, p. 187; 128 III 50 at 1a, p. 53; 127 III 279 at 1a p. 282). According to Art. 77(3) BGG, the Federal Tribunal reviews only the grievances that are raised and reasoned in the appeal brief; this corresponds to the duty to provide reasons embodied at Art. 106(2) BGG for the violation of constitutional rights and of cantonal and intercantonal law (BGE 134 III 186<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn6" name="_ftnref6" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[6]</span></sup></span><!--[endif]--></sup></a> at 5, p. 187 with references). Criticism of an appellate nature is not admissible (BGE 134 III 565<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn7" name="_ftnref7" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[7]</span></sup></span><!--[endif]--></sup></a> at 3.1, p. 567; 119 II 380 at 3b, p. 382).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.6pt; margin: 16.1pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">2.3.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Federal Tribunal bases its decision on the factual findings of the arbitral tribunal (Art. 105(1) BGG). These encompass both the findings as to the essential facts on which the dispute is based and that which concerns the course of the proceedings and the findings as to the circumstances of the case, which include the submission of the parties, their factual allegations, legal arguments, statements in the case and offers of evidence, the contents of a witness statement or of an expert report or the findings during an inspection (BGE 140 III 16 at 1.3.1 with references). The Federal Tribunal may not rectify or supplement the factual findings of the arbitral tribunal even when they are blatantly inaccurate or based on a violation of the law within the meaning of Art. 95 BGG (see Art. 77(2) BGG, which rules out the applicability of Art. 97 BGG and Art. 105(2) BGG). However, the Federal Tribunal may review the factual findings of the award under appeal when some admissible grievances within the meaning of Art. 190(2) PILA are raised against such factual findings or when new evidence is exceptionally taken into account (BGE 138 III 29<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn8" name="_ftnref8" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[8]</span></sup></span><!--[endif]--></sup></a> at 2.2.1, p. 34; 134 III 565<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn9" name="_ftnref9" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[9]</span></sup></span><!--[endif]--></sup></a> at 3.1, p. 567; 133 III 139 at 5, p. 141; each with references). Whoever claims an exception to the rule that the Federal Tribunal is bound by the factual findings of the arbitral tribunal and wishes to rectify or supplement the factual findings on this basis must show, with reference to the record, that the corresponding factual allegations were raised in the arbitral proceedings in accordance with the relevant procedural rules (BGE 115 II 484 at 2a, p. 486; 111 II 471 at 1c, p. 473; each with references).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style8" style="line-height: 15.85pt; margin-top: 3.35pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 19.2pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">2.4.</span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant disregards that the Federal Tribunal is bound by the factual finding in the award under</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.85pt;">appeal, as it submits a detailed statement of facts before its legal arguments, in which it presents the</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">background of the disputes and of the proceedings from its own point of view and departs in part from the</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">factual findings of the Arbitral Tribunal in this respect or broadens them without justifying any exception to</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">the aforesaid rule. Therefore, the corresponding allegations shall not be considered.</span></div><o:p></o:p></span></span><br />
<div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.35pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The new facts raised are also irrelevant (Art. 99(1) BGG). The Appellant submits that the Turkish Court of Cassation, in the meantime, overturned four judgments against members of the management board and sent them back to the first instance for a new hearing.<o:p></o:p></span></span></div><div class="Style8" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style8" style="line-height: 15.85pt; margin-top: 3.6pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 19.2pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">2.5.</span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The appeal must be fully reasoned in the appeal brief within the time limit to appeal (Art. 42(1) BGG). If</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.85pt;">there is a second round of briefs, the appellant may not use the reply to supplement or expand the appeal</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">brief (BGE 132 I 42 at 3.3.4). The reply is only meant for submissions connected with the statements in the</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">observations of another party to the proceedings (BGE 135 I 19 at 2.2).</span></div><o:p></o:p></span></span><br />
<div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.25pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Insofar as the appellant goes beyond this in its reply, its submissions may not be taken into account.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.7pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 0.95pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant submits that the CAS violated the principle of equal treatment of the parties (Art. 190(2)(d) PILA).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.3pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.1. It submits that the CAS essentially emphasized speed in adjudicating the appeal despite the extensive materials of the case and decided only six weeks after the appeal was introduced and less than six days after the conclusion of a hearing lasting several days, pursuant to an accelerated procedure, instead of sending the matter back to UEFA. In doing so, the CAS perpetuated the unequal treatment of the parties, finding its origin in the procedure in the UEFA bodies.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 4.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">From the summer of 2011, the UEFA took almost two years before it finally submitted its report as to the investigation conducted to the Appellant on June 10, 2013, and initiated disciplinary proceedings. Then, it went "thick and fast" until the decision was issued. In the UEFA Control and Disciplinary Body, it was given 10 days to state its position, despite the fact that the report involved and the other records of the case were extensive. The subsequent procedure before the UEFA Appeal Body was nothing but a farce as it lasted only five days from the filing of the appeal to the decision on June 10, 2013, even though the Appeal Body also admitted considerable additional evidence from the Respondent, despite the Appellant's protest.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 16.1pt; margin-top: 3.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant could not obtain comprehensive review and real legal protection in the CAS either; the large dispute was handled and rejected within just six weeks from its appeal; the hearing was limited to two dayswith correspondingly few opportunities for the parties to interrogate witnesses. The Appellant did not willingly consent to accelerated proceedings in the CAS. The reason for the accelerated procedure was that the UEFA admission form had to be signed by a football club wanting to participate in UEFA competitions. The Appellant would not have agreed to accelerated proceedings in the CAS if it had the opportunity to participate in UEFA competitions without signing the corresponding form; the corresponding statement could therefore not be invoked against it. The unequal treatment that took place before the UEFA bodies continued in the arbitral proceedings in the CAS. The Respondent wanted to force a determination of the issue as to who could participate in the 2013/2014 Champions League before the draw. In the end, the Appellant had no other choice but to submit to the Respondent's dictate to preserve the possibility that it may still have been able to participate in this competition. There was no serious interest justifying the accelerated proceedings in the UEFA bodies or in the CAS; The Respondent could have readily conducted an ordinary appeal procedure and also consented to an ordinary course of the arbitral proceedings in the CAS. With its unilateral and unnecessary insistence upon an accelerated procedure in the CAS, the Respondent intended to continue the unequal treatment of the parties and thus the unlawful limitation of procedural rights in the CAS. The CAS could have respected the right to equal treatment only if it had sent the case back to the Respondent as submitted.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.35pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.2.<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin-left: 0cm; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">3.2.1.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Art. 190(2)(d) PILA allows a challenge only on the basis of the mandatory rules of procedure, according to Art. 182(3) PILA. In this respect, the arbitral tribunal must safeguard in particular the right of the parties to be heard. With the exception of the right to a reasoned decision, this corresponds to the constitutional guarantee in Art. 29(2) BV<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn10" name="_ftnref10" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[10]</span></sup></span><!--[endif]--></sup></a> (BGE 130 III 35 at 5, p. 37 </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">f.; </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">128 III 234 at 4b, p. 243; 127 III 576 at 2c, p. 578 f.). Case law infers from this in particular the right of the parties to state their position as to the facts important to the judgment, to submit their legal arguments, to prove their factual allegations important for the decision with timely and appropriate means submitted in the appropriate format, to participate in the hearings, and to access the record (BGE 130 III 35 at 5, p. 38; 127 III 576 at 2c, p. 578 f.; each with references). Furthermore, the principle of equal treatment demands that the parties be treated equally during the entire arbitral proceedings (BGE 133 III 139 at 6.1, p. 143).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin: 15.6pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">3.2.2.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The party claiming to be harmed by a denial of the right to be heard or any other relevant procedural deficiency according to Art. 190(2) PILA forfeits its right if it does not raise the issue in the arbitral procedure in a timely manner and does not take all the appropriate steps to remedy the deficiency to the extent possible (BGE 130 III 66 at 4.3, p. 75; 126 III 249 at 3c, p. 253 f.; 119 II 386 at 1a, p. 388; each with references). The review of the arbitral award by the Federal Tribunal as to the procedural violations is therefore subsidiary because the parties must have raised the issue before the arbitral tribunal immediately so it may be remedied during the arbitral proceedings. It is incompatible with good faith to raise a procedural violation only in appeal proceedings, even though the opportunity to rectify the alleged violation could have been given to the tribunal during the arbitral proceedings (BGE 119 II 386 at 1a, p. 388). In particular, a party acts against good faith and abuses its right when it keeps the grievance in reserve to usein case of unfavorable development of the case and probable defeat (BGE 136 III 605<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn11" name="_ftnref11" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[11]</span></sup></span><!--[endif]--></sup></a> at 3.2.2, p. 609; 129 III 445 at 3.1, p. 445 at 3.1, p. 449; 126 III 249 at 3c, p. 254).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.3.<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.6pt; margin-top: .95pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 28.1pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.3.1.</span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Insofar as the Appellant raises a procedural violation before the Federal Tribunal because it claims</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.6pt;">not have been given sufficient opportunity to interrogate the parties and the witnesses during the two-day</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">hearing, its argument will not be heard. One does not see that it raised this alleged violation during the</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">arbitral proceedings; to the contrary, the factual findings in the award under appeal show that on its own</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">initiative the Appellant reduced the number of witnesses it planned to call from 53 to 35 two days before the</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">hearing and to 32 a day before, while also waiving 13 additional witnesses during the hearing. The</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">grievance has thus been forfeited.</span></div><o:p></o:p></span></span><br />
<div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In its further argument, the Appellant also does not show that it raised an alleged unequal treatment of the parties by the Arbitral Tribunal during the arbitral proceedings. Contrary to its submissions before the Federal Tribunal, it did not strive to remedy the alleged violation during the arbitral proceedings, in the appeal brief or at the hearing. Instead, in the reasons in support of the appeal, it relied merely on various irregularities in the proceedings of the UEFA bodies and asked the CAS to send the case back to the UEFA Appeals Body for a new assessment should the CAS not follow its main submission that the sanctions should be annulled. Shortly before the conclusion of the hearing, the Appellant stated it had not freely consented to the accelerated procedure, so that the case should be sent back to the bodies of UEFA. The Appellant does not show that it applied to the CAS for more time for additional submissions or evidence or for the repetition or supplementation of certain procedural steps, let alone that he had already complained of unequal treatment in the arbitral proceedings.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Therefore, the Appellant did not undertake all appropriate effort to seek correction of the alleged violations in the arbitral proceedings. Thus, it forfeited the right to argue an alleged unequal treatment within the meaning of Art. 190(2)(d) PILA in the recourse proceedings in the Federal Tribunal. The corresponding argument is not capable of appeal as well.<o:p></o:p></span></span></div><div class="Style8" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style8" style="line-height: 15.85pt; margin-top: 3.6pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 28.1pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.3.2.</span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In any event, the Appellant does not show how the CAS treated it unequally in the arbitral procedure</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.85pt;">(BGE 133 II 139 at 6.1, p. 143). Instead before the Federal Tribunal it essentially criticizes the proceedings</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">of the UEFA bodies or the Respondent's behavior and does not show how, from the alleged coerced</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">consent to the accelerated procedure, the CAS should have conducted an ordinary procedure; but it sees</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">unequal treatment instead in the rejection of its appeal submissions by the Arbitral Tribunal. In so doing, it</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">does not actually argue that in the arbitral proceedings, either factually and legally, the other party was</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">granted something procedurally that was refused to the Appellant but instead criticizes, in an impermissible</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">manner, the contents of the award under appeal.</span></div><o:p></o:p></span></span><br />
<div class="Style3" style="line-height: 16.1pt; margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant argues that the Arbitral Tribunal violated its right to be heard by applying the law in an unforeseeable manner (Art. 90(2)(d) PILA).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin: 15.35pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">4.1.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">According to the case law of the Federal Tribunal, there is no constitutional right for the parties to be heard specifically as to the legal assessment of the facts they introduce. Neither does the right to be heard mean that the parties would have to be heard in advance as to the factual findings important to the case. There is, however, an exception when a court intends to base its decision on a legal consideration that was not relied upon by the parties and the relevance of which they could not have reasonably anticipated (BGE 130 III 35 at 5, p. 39; 126 I 19 at 2c/aa, p. 22 and at d/bb, p. 24; 124 I 49 at 3c, p. 52).<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin: 15.1pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">4.2.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The UEFA Appeals Body banned the Appellant from European competitions for two years for fixing a total of eight games and giving false data on the admission form. The CAS waived the sanction concerning false data in the form used and, moreover, found that the Appellant merely attempted to manipulate four games. However, this did not lead to a reduced sentence; the CAS confirmed the two-year ban instead. The Appellant describes this result as an </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"eye-catching operational glitch' </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">in sentencing, which occurred due to the failure in the previous proceedings to address the analogical inference with the sentencing rules of the World Anti-Doping Code (WADA Code). The CAS failed to give the parties and opportunity to state their views as to this </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"totally surprising analogy."</span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin: 15.6pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">4.3.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Contrary to what the Appellant seems to assume, the CAS did not disregard the sentencing criteria of Art. 17 UEFA Disciplinary Regulations (2008 edition) in favor of the WADA Code but rather relied on the former provision instead. Moreover, the Arbitral Tribunal specifically explained why it did not reduce the sanction, although it differed from the federation bodies and found "only" four cases of match-fixing established. In particular, the CAS held on the basis of Art. 17 of the UEFA Disciplinary Regulations that a two-year ban was clearly justified in the case at hand.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Arbitral Tribunal considered that a sanction at the higher end of the range was appropriate in view of its own case law, according to which bans of between one and eight years have been imposed for match-fixing and also in view of the gravity of the case in comparison with match-fixing previously adjudicated. Yet it remained with a two-year ban in view of the principle of </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">ultra petita </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">- the Respondent had waived an appeal. Contrary to the view adopted in the appeal brief, the CAS reference to the fact that comparable sanctions are imposed in doping cases, which would basically justify a two-year ban, which could be higher in particularly serious cases and reduced in the presence of mitigating circumstances, was not at all </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"the paramount consideration for setting the sanction</span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">." Under the circumstances, the CAS was not obliged to give the Appellant the opportunity to state its views as to the sentencing rules of the WADA Code.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.25pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">There has not been an application of the law by surprise, which would violate the right to be heard.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 16.1pt; margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant argues that, in violation of the right to be heard, the CAS did not examine several of its submissions important to the decision.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">5.1. The right to be heard in contradictory proceedings according to Art. 182(3) and Art. 190(2)(d) PILA does not encompass the right to reasons in an international arbitral award, according to well-established case law (BGE 134 III 186<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn12" name="_ftnref12" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[12]</span></sup></span><!--[endif]--></sup></a> at 6.1 with references). However, there is a duty of the arbitrators to examine and deal with the issues important for the decision. The arbitral tribunal violates this duty when, due to oversight or misunderstanding, some legally relevant submissions, arguments, evidence, or evidentiary submissions of a party are not considered. This does not mean, however, that the arbitral tribunal must address each submission of the parties explicitly (BGE 133 III 235 at 5.2 with references).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.1pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">5.2.<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.85pt; margin-left: 0cm; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">5.2.1.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant argues initially that, in assessing the powers of UEFA to impose sanctions for match-fixing, the Arbitral Tribunal completely disregarded some of its submissions. Thus, it submitted that at the time some of the games in dispute took place, it would not at all have recognized Art. 2.06 of the UEFA Champions League Regulations (UCLR) as binding. The Arbitral Tribunal disregarded this, just like its argument that according to the case law of the CAS, the disciplinary regulations of UEFA are to be interpreted objectively according to their wording and context. Its argument that federation regulations - in particular, disciplinary regulations - should be interpreted to the detriment of the user in case of doubt, was not addressed by the CAS at all. Moreover, its submissions as to the interpretation and meaning of the Circular no. 24/2013, introduced at the hearing, were not examined and assessed. According to the Appellant, had the Arbitral Tribunal examined its arguments important to the decision as to the lack of disciplinary power of UEFA, the Appeal would have been upheld.<o:p></o:p></span></span></div><div class="Style8" style="line-height: 15.6pt; margin: 15.85pt 0cm 0.0001pt; text-align: left; text-indent: 0cm;"><!--[if !supportLists]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-font-family: "Arial Narrow"; mso-fareast-language: EN-US;">5.2.2.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span></span></span><!--[endif]--><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Arbitral Tribunal presents the competence of UEFA to conduct disciplinary proceedings as one of the main issues in the case under appeal. It summarized the Appellant's point of view that the grievances in dispute concerned manipulation of championship games in the 2010/2011 season and therefore could not fall within the disciplinary jurisdiction of UEFA, according to the relevant federation regulations.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Arbitral Tribunal then thoroughly examined the jurisdiction of UEFA to punish match-fixing. In this respect, it referred expressly to the Appellant's argument that UEFA did not have disciplinary jurisdiction at the time of the alleged behavior, according to the regulations applicable at the time; according to the Appellant, this was only introduced later, which is why the jurisdiction to adopt the sanction could not be based on Art. 50(3) of the UEFA statues, nor on Art. 2.05 or 2.06 UCLR or Art. 5 of the Disciplinary Regulation. The Arbitral Tribunal thoroughly addressed the issue of the legal basis on which the match-fixing in dispute could be sanctioned by UEFA when it interpreted the aforesaid provisions and alsoassessed their application temporally. In this respect, it expressed its particular view as to the interpretation and meaning of Circular no. 24/2013.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.35pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Under such circumstances, it cannot be claimed that the Arbitral Tribunal violated its minimal duty to examine the issues important to the decision and to address them (see BGE 133 III 235 at 5.2, p. 248, with references). Considering the thorough reasoning in the award under appeal, it must be assumed that the arguments submitted by the Appellant were at least implicitly rejected. The Arbitral Tribunal did not violate the Appellant's right to be heard when it did not specifically address each and all of its submissions as to the applicability of Art. 2.06 UCLR, as to the allegedly decisive method of interpretation of federation regulations, or as to the interpretation and meaning of Circular no. 24/2013.<o:p></o:p></span></span></div><div class="Style7" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style7" style="line-height: 15.6pt; margin-top: 3.6pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 22.1pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">5.3.</span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant argues furthermore that it submitted in the arbitral proceedings that the sanction</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">imposed by the Respondent violated the criminal law principle </span></span><span class="FontStyle13" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">nulla poena sine lege. </span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Yet, the Arbitral</span></span></span></div><span class="FontStyle15"> </span><span class="FontStyle15"><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Tribunal did not address this argument at all in the award. Certain headings </span></span><span class="FontStyle13" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">("[...] and where the sanctions</span></span></div></span><span class="FontStyle13"><div style="text-align: left;"><span class="FontStyle13" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">imposed on accordance with the legality principle?" </span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">or </span></span><span class="FontStyle13" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"Is there a sufficient legal basis for the disciplinary</span></span></div></span><span class="FontStyle13"><div style="text-align: left;"><span class="FontStyle13" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">measure?')<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn13" name="_ftnref13" title=""><sup><span class="FontStyle13"><b><sup><span lang="EN-US" style="font-size: 11pt;">[13]</span></sup></b></span></sup></a> </span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">suggest in and of themselves that the issue was to be materially addressed but this was not</span></span></div></span><span class="FontStyle15"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">the case.</span></div></span><br />
<div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The argument raised in the appeal brief - without any further development - that the aforesaid headings emerged as </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"mere changes of labels" </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">is not comprehensible. The Appellant itself does not dispute that in the reasons of the award, the Arbitral Tribunal expressly addressed its argument that the Federation regulations relied upon for the imposition of the sanction do not meet the requirements of the principle of legality. It introduces its remarks as to the principle of legality under the heading "Is </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">there a sufficient legal basis for the disciplinary measure?'<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn14" name="_ftnref14" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle13"><b><sup><span lang="EN-US" style="font-size: 11pt;">[14]</span></sup></b></span><!--[endif]--></sup></a> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">and states that Swiss law and the consistent case law of the CAS require a clear and unambiguous legal basis for the sanction. Legal certainty requires that the applicable provision - in the case at hand, Art. 2.06 UCLR - should be sufficiently precise, which the Arbitral Tribunal subsequently reviewed and held as to match-fixing but not as to the charge concerning false data in the admission form.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">There is no oversight or misunderstanding on the basis of which the Arbitral Tribunal could be said to have disregarded a legally relevant argument of the Appellant in this respect.<o:p></o:p></span></span></div><div class="Style7" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style7" style="line-height: 15.85pt; margin-top: 3.35pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 22.1pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">5.4.</span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">No violation of the right to be heard is made out as to the Appellant's argument concerning the</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.85pt;">assessment of the disciplinary sanction. The Arbitral Tribunal set forth the corresponding arguments</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">thoroughly in the award under appeal and examined the level of the sanction in detail. Where the Appellant</span></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">describes the reasons of the Arbitral Tribunal as </span></span><span class="FontStyle13" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"not comprehensible," </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">it constitutes mere inadmissible</span></span></div></span></span><span class="FontStyle15"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">criticism of the award under appeal, without any showing of a violation of the right to be heard.</span></div></span><br />
<div class="Style3" style="margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant argues that the CAS violated public policy.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.55pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">6.1. It argues that the award under appeal violates the principle </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">ne bis in idem </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">(prohibition of double jeopardy) which belongs to public policy according to Art. 190(2)(e) PILA, as two sanctions were issued for the same act. The sanction imposed or confirmed by the CAS in the award under appeal violated the aforesaid principle and is accordingly incompatible with public policy.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.5pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">6.2.<o:p></o:p></span></span></div><div class="Style7" style="line-height: 15.6pt; margin-top: .95pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 29.3pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">6.2.1.</span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.6pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Procedural public policy is breached where there is the violation of fundamental and generally</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.6pt;">recognized procedural principles and where the disregard of such principles contradicts the sense of justice</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">in an intolerable way, rendering the decision absolutely incompatible with the values and legal order of a</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">state ruled by law (BGE 140 III 278 at 3.1; 136 III 345</span><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn15" name="_ftnref15" style="font-size: 11pt; line-height: 15.6pt;" title=""><sup><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[15]</span></sup></span></sup></a><span style="font-size: 11pt; line-height: 15.6pt;"> at 2.1, p. 347 f.; 132 III 389 at 2.2.1, p. 392; 128 III</span></div><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.6pt;">191 at 4a, p. 194).</span></div><o:p></o:p></span></span><br />
<div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The arbitral tribunal violates public policy when it leaves unheeded in its award the material legal force of an earlier judgment or when it deviates in the final award from the opinion expressed in a preliminary award as to a material preliminary issue (BGE 140 III 278 at 3.1; 136 III 345<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn16" name="_ftnref16" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[16]</span></sup></span><!--[endif]--></sup></a> at 2.1, p. 348; each with references).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The principle of </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">ne bis in idem </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">belongs, in principle, to public policy within the meaning of Art. 190(2)(e) PILA. However, the Federal Tribunal left open the extent to which this principle of criminal law would also have to be taken into account in disciplinary sport law (judgment 4A_386/2010<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn17" name="_ftnref17" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[17]</span></sup></span><!--[endif]--></sup></a> of January 3, 2011, at 9.3.1). The issue needs not be examined in depth in the case at hand, as the CAS itself assumed its applicability and examined the compatibility of the sanction with this principle in detail. The Federal Tribunal limits itself therefore to the review of the specific application of the aforesaid principle by the Arbitral Tribunal (see judgment 4A_386/2010,<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn18" name="_ftnref18" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[18]</span></sup></span><!--[endif]--></sup></a> ibid., at 9.3.1 a.e.).<o:p></o:p></span></span></div><div class="Style7" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style7" style="line-height: 15.85pt; margin-top: 3.35pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 29.3pt;"></div><div style="text-align: left;"><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">6.2.2.</span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In the arbitral proceedings, the Appellant saw a violation of the principle </span></span><span class="FontStyle13" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">ne bis in idem </span></span><span class="FontStyle15" style="line-height: 15.85pt;"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">because it</span></span></div><span class="FontStyle15"></span><br />
<div style="text-align: left;"><span class="FontStyle15"><span style="font-size: 11pt; line-height: 15.85pt;">had already been excluded from the Champion League's 2011/2012 season, pursuant to the decision of</span></span></div><span class="FontStyle15"> <span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><div style="text-align: left;"><span style="font-size: 11pt; line-height: 15.85pt;">the Turkish Football Federation of August 24, 2011; therefore, it could not be banned a second time fromthe competition by UEFA. The Arbitral Tribunal stated that the ban issued by the Turkish TFF Federation for the 2011/2012 season at the time did not exclude a subsequent ban for further seasons in the framework of disciplinary proceedings. In this respect, it relied upon Article 50(3) of the UEFA Statues (2010 edition) and on Article 2.05 and Article 2.06 UCLR (2011/2012) which read as follows:</span></div><o:p></o:p></span></span><br />
<div class="Style9" style="line-height: 12.0pt; margin-left: 28.3pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style9" style="margin: 6pt 0cm 0.0001pt 28.3pt; text-align: left;"><span class="FontStyle12"><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Article 50(3) of the UEFA Statues (2010):<o:p></o:p></span></span></div><div class="Style9" style="line-height: 12pt; margin-left: 28.8pt; text-align: left;"><br />
</div><div class="Style9" style="line-height: 14.4pt; margin: 3.1pt 0cm 0.0001pt 28.8pt; text-align: left;"><span class="FontStyle12"><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures.<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn19" name="_ftnref19" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle12"><sup><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[19]</span></sup></span><!--[endif]--></sup></a><sup><o:p></o:p></sup></span></span></div><div class="Style9" style="line-height: 12.0pt; margin-left: 28.3pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style9" style="margin: 5.05pt 0cm 0.0001pt 28.3pt; text-align: left;"><span class="FontStyle12"><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Article 2.05 UCLR (2011/2012):<o:p></o:p></span></span></div><div class="Style9" style="line-height: 12pt; margin-left: 28.55pt; text-align: left;"><br />
</div><div class="Style9" style="line-height: 14.4pt; margin: 3.1pt 0cm 0.0001pt 28.55pt; text-align: left;"><span class="FontStyle12"><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. Such ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court. UEFA can refrain from declaring a club ineligible to participate in the competition if UEFA is comfortably satisfied that the impact of a decision taken in connection with the same factual circumstances by a national or international sporting body, arbitral tribunal or state court has already had the effect to prevent that club from participating in a UEFA club competition.<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn20" name="_ftnref20" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle12"><sup><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[20]</span></sup></span><!--[endif]--></sup></a><sup><o:p></o:p></sup></span></span></div><div class="Style9" style="line-height: 12.0pt; margin-left: 28.3pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style9" style="margin: 5.05pt 0cm 0.0001pt 28.3pt; text-align: left;"><span class="FontStyle12"><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Article 2.06 UCLR (2011/2012):<o:p></o:p></span></span></div><div class="Style9" style="line-height: 12pt; margin-left: 28.55pt; text-align: left;"><br />
</div><div class="Style9" style="line-height: 14.4pt; margin: 3.1pt 0cm 0.0001pt 28.55pt; text-align: left;"><span class="FontStyle12"><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In addition to the administrative measure of declaring a club ineligible, as provided for in paragraph 2.05, the UEFA Organs for the Administration of Justice can, if the circumstances so justify, also take disciplinary measures in accordance with the UEFA Disciplinary Regulations.<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn21" name="_ftnref21" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle12"><sup><span lang="EN-US" style="font-size: 10.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[21]</span></sup></span><!--[endif]--></sup></a><sup><o:p></o:p></sup></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Arbitral Tribunal held that Article 50(3) of the UEFA Statutes in connection with Article 2.05 and 2.06 UCLR anticipates a two-stage procedure: in the first stage, an administrative measure would be issued on the basis of Article 2.05 UCLR, namely a one-year ban from European competitions. In a second stage, a disciplinary measure would be issued which has no maximum duration and could be issued </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">"in addition to the administrative measure." </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The two types of bans would have to be clearly separated pursuant to the purpose of the aforesaid provisions, insofar as a ban from the competition could be issued immediately at first, before UEFA would review the alleged transgressions in detail. UEFA would have an interest worthy of protection to exclude a club from the competition immediately without first initiating comprehensive disciplinary proceedings against it. According to the CAS, the administrative measure is therefore not thefinal but merely a provisional minimal sanction, which seeks to protect the integrity of the specific competition.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 4.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">6.2.3. The application of the principle </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">ne bis in idem </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">requires in particular that, in the first proceedings, the court should have had the opportunity to assess the facts in all respects (BGE 135 IV 6 at 3.3; 119 Ib 311 at 3c, with references). There is no apparent reason why this should apply when, in the first proceedings, the Turkish Football Federation merely issued an administrative measure to protect the integrity of the competition for a limited time in provisional proceedings and not in the context of a comprehensive disciplinary procedure to assess the alleged violations in a definitive way. As the Federal Tribunal held in a previous case concerning the jurisdiction of sports arbitration, the application of the prohibition of double jeopardy requires in particular that the legal values protected should be identical; moreover, the Court pointed out that the prohibition does not exclude that the same proceedings could carry civil, administrative or disciplinary consequences besides the criminal ones (judgment 4A_386/2010<a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftn22" name="_ftnref22" title=""><sup><!--[if !supportFootnotes]--><span class="FontStyle15"><sup><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[22]</span></sup></span><!--[endif]--></sup></a> of January 3, 2011, at<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 2.4pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">9.3.2).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 4.3pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">However, the Appellant does not address the fact that the different proceedings according to Article 2.05 and Article 2.06 UCLR pursue different goals and protect different legal values. It merely limits itself to a reference to the fact that the Arbitral Tribunal spoke of "sanctions" in both proceedings but in doing so, it does not show that the one-year ban imposed pursuant to Article 2.05 would be a decision having the same objective as the subsequent disciplinary measure imposed pursuant to Article 2.06. In view of the two-stage procedure described, each with a different regulatory purpose, one does not see either to what extent the Turkish TFF Federation already had the opportunity in the first proceedings to assess the facts conclusively from all factual points of view.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.35pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">There is no violation of the principle </span></span><span class="FontStyle13"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">ne bis in idem </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">by the CAS. The argument that public policy was violated is therefore unfounded.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 3.6pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">7.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The appeal appears unfounded and must be rejected insofar as the matter is capable of appeal. In view of the outcome of the proceedings, the Appellant must pay the costs and compensate the other party (Art. 66(1) and Art. 68(2) BGG).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 9.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Therefore the Federal Tribunal Pronounces:<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 10.8pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">1.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 3.1pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The appeal is rejected insofar as the matter is capable of appeal.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 2.65pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The judicial costs set at CHF 30'000 shall be borne by the Appellant.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.7pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">3.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 3.35pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The Appellant shall pay to the Respondent an amount of CHF 35'000 for the federal judicial proceedings.<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 6.7pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">4.<o:p></o:p></span></span></div><div class="Style3" style="margin-top: 3.35pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">This judgment shall be notified in writing to the parties and to the Court of Arbitration for Sport (CAS).<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 2.4pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Lausanne, October 16, 2014<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12pt; text-align: left;"><br />
</div><div class="Style3" style="margin-top: 10.8pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In the name of the First Civil Law Court of the Swiss Federal Tribunal<o:p></o:p></span></span></div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 12.0pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; text-align: left;"><br />
</div><div class="Style3" style="line-height: 15.85pt; margin-top: 11.75pt; mso-line-height-rule: exactly; mso-pagination: widow-orphan; tab-stops: 215.75pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Presiding Judge:</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Clerk:<o:p></o:p></span></span></div><div class="Style3" style="line-height: 15.85pt; text-align: left;"><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Klett (Mrs.)</span></span><span class="FontStyle15"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle15"><span lang="EN-US" style="font-size: 11.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Leemann<o:p></o:p></span></span></div><br />
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<div id="ftn1"><div class="Style1" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref1" name="_ftn1" title=""></a><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Quote as X._GmbH </span></span><span class="FontStyle11"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">v. </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Y._Ltd., 4A_577/2013.<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The original decision is in German. The full text is available on the website of the Federal Tribunal, <u><a href="http://www.bger.ch/"><span style="color: windowtext;">www.bger.ch.</span></a><o:p></o:p></u></span></span></div></div><div id="ftn2"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref2" name="_ftn2" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[2]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">BGG is the German abbreviation for the Federal Statute of June 17, 2005, organizing the Federal<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Tribunal, RS 173.110.<o:p></o:p></span></span></div></div><div id="ftn3"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref3" name="_ftn3" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[3]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The official languages of Switzerland are German, French, and Italian.<o:p></o:p></span></span></div></div><div id="ftn4"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref4" name="_ftn4" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[4]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">PILA is the most commonly used English abbreviation for the Federal Statute on International<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Private Law of December 18, 1987, RS 291.<o:p></o:p></span></span></div></div><div id="ftn5"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref5" name="_ftn5" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[5]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/right-to-be-heard-equality-between-the-parties"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/right-to-be-heard-equality-between-the-parties</span></a><o:p></o:p></span></u></span></div></div><div id="ftn6"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref6" name="_ftn6" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[6]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/right-to-be-heard-equality-between-the-parties"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/right-to-be-heard-equality-between-the-parties</span></a><o:p></o:p></span></u></span></div></div><div id="ftn7"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref7" name="_ftn7" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[7]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/extension-of-arbitration-clause-to-non-signatories-case-of-a-gua"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/extension-of-arbitration-clause-to-non-signatories-case-of-a-gua</span></a><o:p></o:p></span></u></span></div></div><div id="ftn8"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref8" name="_ftn8" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[8]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/jurisdiction-of-the-cas-upheld-a-pathological-clause-has-to-be-s"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/jurisdiction-of-the-cas-upheld-a-pathological-clause-has-to-be-s</span></a><o:p></o:p></span></u></span></div></div><div id="ftn9"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref9" name="_ftn9" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[9]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/extension-of-arbitration-clause-to-non-signatories-case-of-a-gua"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/extension-of-arbitration-clause-to-non-signatories-case-of-a-gua</span></a><o:p></o:p></span></u></span></div></div><div id="ftn10"><div class="Style1" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref10" name="_ftn10" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[10]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">BV is the German abbreviation for the Swiss Federal Constitution.<o:p></o:p></span></span></div></div><div id="ftn11"><div class="Style1" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref11" name="_ftn11" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[11]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"> <u>Translator's Note</u>:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/independence-and-impartiality-of-a-party-appointed-arbitrator-in"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/independence-and-impartiality-of-a-party-appointed-arbitrator-in</span></a><o:p></o:p></span></u></span></div></div><div id="ftn12"><div class="Style1" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref12" name="_ftn12" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[12]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"> <u>Translator's Note</u>:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/right-to-be-heard-equality-between-the-parties"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/right-to-be-heard-equality-between-the-parties</span></a><o:p></o:p></span></u></span></div></div><div id="ftn13"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref13" name="_ftn13" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[13]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In English in the original text.<o:p></o:p></span></span></div></div><div id="ftn14"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref14" name="_ftn14" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[14]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In English in the original text.<o:p></o:p></span></span></div></div><div id="ftn15"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref15" name="_ftn15" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[15]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/setting-aside-of-award-for-violation-of-public-policy-principle-"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/setting-aside-of-award-for-violation-of-public-policy-principle-</span></a><o:p></o:p></span></u></span></div></div><div id="ftn16"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref16" name="_ftn16" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[16]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/setting-aside-of-award-for-violation-of-public-policy-principle-"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/setting-aside-of-award-for-violation-of-public-policy-principle-</span></a><o:p></o:p></span></u></span></div></div><div id="ftn17"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref17" name="_ftn17" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[17]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/award-allegedly-issued-by-a-truncated-tribunal-claim-that-cas-de"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/award-allegedly-issued-by-a-truncated-tribunal-claim-that-cas-de</span></a><o:p></o:p></span></u></span></div></div><div id="ftn18"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref18" name="_ftn18" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[18]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/award-allegedly-issued-by-a-truncated-tribunal-claim-that-cas-de"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/award-allegedly-issued-by-a-truncated-tribunal-claim-that-cas-de</span></a><o:p></o:p></span></u></span></div></div><div id="ftn19"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref19" name="_ftn19" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[19]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In English in the original text.<o:p></o:p></span></span></div></div><div id="ftn20"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref20" name="_ftn20" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[20]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In English in the original text.<o:p></o:p></span></span></div></div><div id="ftn21"><div class="Style2" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref21" name="_ftn21" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[21]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">Translator's Note</span></u></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">In English in the original text.<o:p></o:p></span></span></div></div><div id="ftn22"><div class="Style1" style="text-align: left;"><a href="http://www.buray.net/2016/09/swiss-federal-courts-decision-on-fenerbahce-match-fixing-scandal.html#_ftnref22" name="_ftn22" title=""><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><!--[if !supportFootnotes]--><span class="FontStyle14"><sup><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-fareast;">[22]</span></sup></span><!--[endif]--></span></sup></span></a><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"> <u>Translator's Note</u>:</span></span><span class="FontStyle14"><span lang="EN-US" style="font-family: "times new roman" , "serif"; font-size: 10.0pt;"> </span></span><span class="FontStyle14"><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;">The English translation of this decision is available here:<o:p></o:p></span></span></div><div class="Style1" style="text-align: left;"><span class="FontStyle14"><u><span lang="EN-US" style="font-size: 9.0pt; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"><a href="http://www.swissarbitrationdecisions.com/award-allegedly-issued-by-a-truncated-tribunal-claim-that-cas-de"><span style="color: windowtext;">http://www.swissarbitrationdecisions.com/award-allegedly-issued-by-a-truncated-tribunal-claim-that-cas-de.</span></a><o:p></o:p></span></u></span></div></div></div><div style="text-align: left;"><br />
</div><div style="text-align: left;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-21505376066404824292015-07-04T16:17:00.000+01:002015-09-01T14:36:42.894+01:00John Stuart Mill on Use and Abuse of Political Terms<div style="text-align: center;">
JOHN STUART MILL'S REVIEW OF GEORGE CORNEWALL LEWIS' USE AND ABUSE OF POLITICAL TERMS</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEivyrGBHEiY24IKx4vgzUqOAUTy9LFRi_TOIB860Kp9t-W7iTEpQSBmBnx2iLCn7pTlygWPD6KZXfmcIYMOCDuNSaJR90Yf9OfqfafE3UVGb-V97M4ppZ1Ued1CqYb83lBU6C7HxtlFvkVs/s1600/john-stuart-mill.jpg" imageanchor="1"><img border="0" height="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEivyrGBHEiY24IKx4vgzUqOAUTy9LFRi_TOIB860Kp9t-W7iTEpQSBmBnx2iLCn7pTlygWPD6KZXfmcIYMOCDuNSaJR90Yf9OfqfafE3UVGb-V97M4ppZ1Ued1CqYb83lBU6C7HxtlFvkVs/s1600/john-stuart-mill.jpg" width="0" /></a><br />
<br />
<i>as published on Tait's Edinburg Magazine</i><br />
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Mr. Lewis is known in society as the son of the Right Hon. T. Frankland Lewis, and in literature, as the translator, Jointly with Mr. Henry Tufnell, of two erudite and interesting works are classical antiquity, Midler's Dorians, and Bockh's Public Economy of Athens. Mr. Lewis is also the author of a little work on logic; to which subject, stimulated like many others of the Oxford youth, by the precepts and example of Dr. Whately, he has devoted more than common attention, and was so far peculiarly qualified for writing sack a work as the volume before us professes to be. This alone should entitle him to no slight praise ; for such is the present state of the human mind, in some important departments, that it is often highly meritorious to have written a book, in itself of no extraordinary merit, if the work afford proof that any one of the requisites for writing a good book on the same subject is possessed in an eminent degree.<br />
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Certain it is, that there scarcely ever was a period when logic was so little studied, systematically, and in a scientific manner, as of late years; while, perhaps, no generation ever had less to plead in extenuation of neglecting it. For if, in order to reason well, it were only necessary to be destitute, of every spark of fancy and poetic imagination, the world of letters and thought might boast, just now, of containing few besides good reasoners; people to whom, one would imagine, that logic must be all in all, if we did not, to our astonishment, find that they despise it. But the most prosaic matter-of-fact person in the world must not flatter himself that he is able to reason because he is fit for nothing else. Reasoning, like all other mental excellencies, comes by appropriate culture; not by exterminating1 the opposite good quality, the other half of a perfect character. Perhaps the mere reasoners, with whom the world abounds, would be considerably less numerous, if men really took the pains to learn to reason. It is a sign of a weak judgment, as of a weak virtue, to take to flight at the approach of every thing which Gen, by any remote possibility, lead it astray. Men who, for want of cultivation, have the intellects of dwarfs, are of course the slaves of their imagination, if they have any, as they are the slaves of their sensations, if they have not; and it is partly, perhaps, because the systematic culture of the thinking faculty is in little repute, that imagination also is in such bad odour; there being no solidity and vigour of intellect to resist it where it tends to mislead. The sublimest of English, poets imposed an elementary book of logic for the schools; but our puny rhymsters think logic, forsooth, too dry for them,<a href="https://www.blogger.com/blogger.g?blogID=6198338267529248687#plus">+</a> and our logicians, from that and other causes, very commonly say with M. Casimir Perier, A quoi un poete est-il bon?<br />
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In undertaking to treat of the use and abuse of the leading terms of political philosophy, Mr. Lewis has set before himself a task to which no one but a logician could be competent, and one of the most important to which logic could be applied. If, however, we were disposed for minute criticism, we might find some scope for it in the very title-page. We might ask, what is meant by an abuse of terms; and whether a nan m not at liberty to employ terms in any way which enables him to deliver himself of his own ideas the most intelligibly; to bring home to the minds of others, in the greatest completeness, the impression which exists in his own? This question, though it has a considerable bearing upon many parts of Mr. Lewis's book, throws, how ever, no doubt upon the importance of the object he aims at. His end is, to prevent things essentially different, from being confounded, because they happen to be called by the same name. It is past doubt that this, like all other modes of false and slovenly thinking, might be copiously exemplified from the field of politics; and Mr. Lewis has not been unhappy m his choke of examples. The instances, in which the confusion of language is the consequence, and not the cause, of the erroneous train of thought (which we believe to be generally the more common ease,) are equally worthy of Mr. Lewis's attention, and will, no doubt, in time receive an equal share of it.<br />
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Some notion of the extent of ground over which our author travels may be gathered from his table of contents; which, with that view* we transcribe :-<br />
<br />
"1. Government. 2. Constitution—Constitutional. 3. Right—Duty—Wrong;— Rightful—Wrongful—Justice. 4. Law—Lawful-Unlawful. 6. Sovereign Sovereignty—Division of Forms of Government. 6. Monarchy—Royalty-King 7. Commonwealth—Republic—Republican. 8. Aristocracy—Oligarchy—Nobility. 9. Democracy. 10. Mixed Government—Balance of Powers. 11. People—Community. 12. Representation—Representative—Representative Government. 13. Rich Middle Class-Peer, 14. Nature-Natural-Unnatural-State of Nature. 15. liberty—Freedom—Free, 16. Free Government—Arbitrary Government-Tyranny—Despotism—Anarchy. 17. Power—Authority—Force. 18. Public-Private—Political—Civil—Municipal. 19. Property—Possession—Estate—Estates of Parliament. 20. Community of Goods."<br />
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To explain thoroughly the various senses of any one of these terms, would require, possibly, as much space, as Mr. Lewis has devoted to them all. His observations, however, are those of an instructed and intelligent mind. They contain, perhaps, not much that is absolutely new ; except that ideas, which the mind has made completely its own, -always come out in a form more or less different from that in which they went in, and are, in that sense, always original. Moreover, any one who can look straight into a thing itself, and not merely at its image mirrored in another man's mind, can also look at things, upon occasion, when there is no other man to point them out.<sup><a fn1="" href="https://www.blogger.com/blogger.g?blogID=6198338267529248687">1</a></sup><br />
<br />
Yet, highly as we think of this work, and still more highly of the author's capabilities, we will not pretend that he has realized all our conceptions of what such a work ought to be. We do not think he is fully conscious of what his subject requires of him. The most that he ever seems to accomplish, is to make out that something is wrong, hut not how that which is wrong may be made right. He may say, that this is all he aimed at; and so, indeed, it is. But it may always be questioned, whether one has indeed cut down to the very root of an error, who leaves no truth planted in its stead. Mr Lewis, at least, continually leaves the mind under the unsatisfactory impression, that the matter has not been probed to the bottom, and that underneath almost every thing which he sees, there lies something deeper which he does not see. If in this we should be deemed hypercritical, we would say in our defence, that we should never think of ranging Mr. Lewis in the class of those, from whom we take thankfully and without asking questions, any trifling matter, which is all they have to bestow. The author of such a work as the present, is entitled to be tried by the same standard as the highest order of intellect; to be compared not with the small productions of small minds, but with ideal perfection.<br />
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Mankind have many ideas, and but few words. This truth should never be absent from the mind of one who takes upon him to decide if another man's language is philosophical or the reverse. Two consequences follow from it; one, that a certain laxity in the use of language must be borne with, if a writer makes himself understood; the other, that, to understand a writer who is obliged to use the same words as a vehicle for different ideas, requires a vigorous effort of co-operation on the part of the reader. 'These unavoidable ambiguities render it easier, we admit, for confusion of ideas to pass undetected: but they also render it more difficult for any man's ideas to be so expressed that they shall not appear confused; particularly when viewed with that habitual contempt with which men of clear ideas generally regard those, any of whose ideas are not clear, and with that disposition which contempt, like every other passion, commonly carries with it, to presume the existence of its object. It should be recollected, too, that many a man has a mind teeming with important thoughts, who is quite incapable of putting them into words which shall not be liable to any metaphysical objection; that when this is the case, the logical incoherence or incongruity of the expression, is commonly the very first thing which strikes the mind, and that which there is least merit in perceiving. The man of superior intellect, in that case, is not he who can only see that the proposition precisely as stated, is not true; but he who, not overlooking the incorrectness at the surface, does, nevertheless, discern that there is truth at the bottom. The logical defect, on the other hand, is the only thing which strikes the eye of the mere logician. The proper office, we should have conceived, of a clear thinker, would be to make other men's thoughts clear for them, if they, cannot do it for themselves, and to give words to the man of genius, fitted, to express his ideas with philosophic accuracy, Socrates, in the beautiful dialogue called the Phaedrus, describes; his own vocation as that of a mental midwife, not so Mr. A., or B., who, perhaps, owes the advantage of clear ideas to the fact of his having no ideas which it is at all difficult to make clear. The use of logic, would seem, to such a person, is not to help others, but to privilege himself against being required to listen to them. He will not think it worth his while to examine what a man has to say, unless it is put to him in such a manner that it shall cost, him no trouble at all to make it out. If you come to him needing help, you may learn from him that you are a fool; but you certainly will not be made wise.<br />
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It would be grossly unjust to Mr. Lewis to accuse him of any thing approaching to this ; but we could have wished that his work could have been more decidedly cited as an example of the opposite quality. We desiderate in it somewhat more of what becomes all men, but, most of all, a young man, to whom the struggles of life are only in their commencement, and whose spirit cannot yet have been wounded, or his temper embittered by hostile collision with the world, but which, in young men more especially, is apt to be wanting—a slowness to condemn, A man must now learn, by experience, what once came almost by nature to those who had any faculty of seeing; to look upon all things with a benevolent, but upon great men and their works with a reverential spirit; rather to seek in them for what he may learn from them, than for opportunities of shewing what they might have learned from him; to give such men the benefit of every possibility of their-having spoken with a rational meaning; not easily or hastily to persuade himself that men like Plato, and Locke, and Rousseau, and Bentham, gave themselves a world of trouble in running after something which they thought was a reality, but which he Mr. A. B. can clearly see to be an unsubstantial phantom; to exhaust every other hypothesis, before supposing himself wiser than they; and even then to examine, with good will and without prejudice, if their error do not contain some germ of truth; and if any conclusion, such, as a philosopher can adopt, may even yet be built upon the foundation on which they, it may be, have reared nothing but an edifice of sand.<br />
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Such men are not refuted because they are convicted of using words occasionally with no very definite meaning, or even of founding an, argument upon an ambiguity. The substance of correct reasoning map. still be there, although there be a deficiency in the forms. A vague term, which they may never have given themselves the trouble to define, may yet, on each particular occasion, have excited in their minds precisely the ideas it should excite. The leading word in an argument may be ambiguous; but between its two meanings there is often a secret link of connexion, unobserved by the critic but felt by the author, though perhaps he may not have given himself a strictly logical account of it; and the conclusion may turn not upon what is different in the two meanings, but upon what they have in common, or at least analogous.<br />
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Until logicians know these things, and act as if they knew them, they must not expect that a logician and a captious man will cease to be, in common apprehension, nearly synonymous. How, in fact, can it he otherwise In the mind of a person, who knows not very clearly what logic is, but who finds that he can in no way give utterance to his conviction without infringing logical rules, while he is conscious all the time that the reel grounds of the conviction here not been touched in the slightest degree?<br />
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It is only in a very qualified sense that these admonitions can he applied to Mr. Lewis; but there are so few persons of our time to whom they do not apply more or less, (and perhaps there here been hut row at any time,) that we are not surprised to find them even in his case far from superfluous. It remains for us to establish this by particular instances.<br />
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Mr. Lewis, under the word right, gives a definition of legal rights, and then lays it down that all rights are the creatures of law, that is, of the will of the sovereign; that the sovereign himself has no rights, nor can any one have rights as against the sovereign; because, being sovereign, he is by that supposition exempt from legal obligation, or legal responsibility. So far, so good. Mr. Lewis then says, that to call any thing a right which cannot be enforced by law, is an abuse of language. We answer,—Not until mankind have consented to be bound by Mr. Lewis's definition. For example, when Dr, Johnson says that a man has not a moral right to think as he pleases, "because he ought to inform himself, and think justly, "Mr. Lewis says he must mean legal right; and adds other observations, proving that he has not even caught a glimpse of Johnson's drift. Again, according to him, whoever asserts that no man can have a right to do that which is wrong, founds an argument upon a mere ambiguity, confounding a right with the adjective right: and this ambiguity is "mischievous, because it serves as an inducement to error, and confounds things as well as words."<br />
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Now, we contend that Mr. Lewis is here censuring what he does most thoroughly understand, and that the use of the word right, in both throe cases, is as good logic and as good English as his own. Right is the correlative of duty, or obligation; and (with some limitations) is co-extensive with those terms. Whatever any man is under an obligation to give you, or to do for you, to that you have a right. There are legal obligations, and there are consequently legal rights. There are also moral obligations; and no one, that we know of considers this phrase an abuse of language, or proposes that it should be dispensed with. It-seems, therefore, but an adherence to the established usage of our language, to speak of moral rights; which stand in the same relation to moral obligations as legal rights do to legal obligations. All that is necessary is to settle distinctly with ourselves, and make it intelligible to those whom we are addressing, which kind of rights it is that we mean; If we fail in which, we become justly liable to Mr. Lewis's censure. It has not totally escaped Mr. Lewis that there may be some meaning in the phrase, moral rights; but he has, by no means, correctly hit that meaning. He expounds it thus,—"claims recommended by views of justice or public policy;" the sort of claim a man may be said to ham to anything which you think it desirable that he should possess. Not such thing. No man in his sound senses considers himself to be wronged every time he does not get what he desires; every man distinguishes between what he thinks another man morally bound to do, and what he merely would like to see him do; between what is morally criminal, a fit subject for complaint or reproach, and what excites only regress and a wish that the act had been abstained from. No system of moral philosophy or metaphysics that we ever heard of, denies this distinction; though several have undertaken to account for it, and to place it upon the right footing.<br />
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If you may say that it is the moral duty of subjects to obey their government, you may also express this by saying that government has a moral right to their obedience. If you may say that it is the moral duty of sovereigns to govern well, or else to abdicate, you may say that subjects have a right to be well governed. If you may say, that is is morally culpable in a government to attempt to retain its authority, contrary to the inclinations of its subjects; you may say, that the people have a right to change their government. All this, without any logical' inaccuracy, or "abuse of language." We are not defending this phraseology as the best that can be employed; the language of right and the language of duty, are logically equivalent, and the latter has, in many respects, the advantage. We are only contending, that, whoever uses tho word right shall not be adjudged guilty of nonsense, until it has been tried whether this mode of interpreting his meaning will make it sense. And this we complain that Mr. Lewis has not done.<br />
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To explain what we meant by saying that almost everything which Mr. Lewis sees has something lying under it which he does not see, we have now to show, that, in catching at an imaginary ambiguity near the surface, he has missed the deeper and less obvious ambiguities by which men are really misled. Two of these we shall briefly set forth.<br />
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Speaking morally, you are said to have a right to do a thing, if all persons are morally bound not to hinder you from doing it. But, in another sense, to have a right to do a thing, is the opposite of having no right to do it,—viz. of being under a moral obligation to forbear from doing it. In this sense, to say that you have a right to do a thing, means that you may do it without any breach of duty on your part; that other persons not only ought not to hinder you, but have no cause to think the worse of you for doing it. This is a perfectly distinct proposition from the preceding. The right which you have by virtue of a duty incumbent upon other persons, is obviously quite a different thing from a right consisting in the absence of any duty incumbent upon yourself. Yet the two things are perpetually confounded. Thus a man will say he has a right to publish his opinions; which may be true in this sense, that it would be a breach of duty in any other person to interfere and prevent the publication:—but he assumes thereupon, that in publishing his opinions, he himself violates no duty; which may either be true or false, depending, as it does, upon his having taken due pains to satisfy himself, first, that the opinions are true, and next, that their publication in this manner, and at this particular juncture, will probably be beneficial to the interests of truth, on the whole. In this sense of the word, a man has no right to do that which is wrong, though it may often happen that nobody has a right to prevent him from doing it.<br />
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The second ambiguity is that of confounding a right, of any kind, with a right to enforce that right by resisting or punishing a violation of it. Men will say, for example, that they have a right to a good government; which in undeniably true, it-being the moral duty of their governors to govern them well. But in granting this, you are supposed to have admitted their right or liberty to turn out their governors, and perhaps to punish them, for having failed in the performance of this duty; which far from being the same thing, is by no means universally true, but depends upon an immense number of varying circumstances, and is,-perhaps, altogether the knottiest question in practical ethics. This example involves both the ambiguities which we have mentioned.<br />
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We have dealt longer on this one topic than the reader perhaps will approve. We shall pass more slightly over the remainder.<br />
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Our author treats with unqualified contempt all that has been written by Locke and others, concerning a state of nature and the social compact. In this we cannot altogether agree with him. The state of society contemplated by Rousseau, in which mankind lived together without government, may never have existed, and it is of no consequence whether it did so or not. The question is not whether it ever, existed, but whether there is any advantage in supposing it hypothetically; as we assume in argument all kinds of cases which never occur, in order to illustrate those which do. All discussions respecting a state of nature are inquiries what morality would be if there were no law. This is the real scope of Locke's Essay on Government, rightly understood: whatever is objectionable in the details did not arise from the nature of the inquiry, but from a certain wavering and obscurity in his notion of the grounds of morality itself. Nor is this mode of viewing the subject, we conceive, without its advantages, in an enlarged view, either of morality or law. Not to mention that, as is observed by Locke himself, all independent governments, in relation to one another, are actually in a state of nature, subject to moral duties but obeying no common superior; so that the speculations which Mr. Lewis despises, tend, in international morality at least, to a direct practical application.<br />
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Even the social compact, (though a pure fiction, upon which no valid argument can consequently be founded,) and the doctrine connected with it, of the inalienable and imprescriptible rights of man, had this good in them, that they were suggested by a sense, that the power of the sovereign, although, of course, incapable of any legal limitation, has a moral limit, since a government ought not to take from any of its subjects more than it gives. Whatever obligation any man would lie under in a state of nature, not to inflict evil upon another for the sake of good to himself, that same obligation lies upon society towards every one of its members. If he injure or molest any of his fellow-citizens, the consequences of whatever they may be obliged to do in self-defence, must fall upon himself; but otherwise, the government fails of its duty, if on any plea of doing good to the community in the aggregate, it reduces him to such a state, that he is on the whole a loser by living in a state of government, and would have been better off if it did not exist. This is the truth which was dimly shadowed forth, in howsoever rude and unskilful a manner, in the theories of the social compact and of the rights of man. It was felt, that a man's voluntary consent to live under a government, was the surest proof he could give of his feeling it to be beneficial to him; and so great was the importance attached to this sort of assurance, that where an express consent was out of the question, some circumstance was fixed upon, from which, by stretching a few points, a consent might be presumed. But the test is real, where, as in imperfectly settled countries, the forest is open to the man who is not contented with his lot.<br />
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Notwithstanding the length to which our remarks have extended, we cannot overlook one or two passages, less remarkable for their importance, than as proofs of the haste with which Mr. Lewis must have examined the authors and even the passages he has criticised.<br />
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Thus, where Mr. Bentham recommends natural procedure in the administration of justice, in opposition to technical Mr. Lewis observes, that as it is impossible to suppose that any mode of judicial procedure should be left to the discretion of the judge guided by no rules, the word natural, 'in this case', "seems to be a vague term of praise, signifying that system which, to the writer, seems most expedient." It shows but little knowledge of Mr. Bentham's habits of mind, to account in this way, of all others, for any phraseology he may think proper to adopt. The fact is, as has been explained a hundred times by Mr. Bentham himself/—that by natural procedure, he means what he also calls domestic procedure; viz. the simple and direct mode of getting at the truth which suggests itself naturally,—that is, readily and invariably, to all men who are inquiring in good earnest into any matter which; -happening to concern themselves, they are really desirous to ascertain. That the technical methods of our own, and all other systems of law, are bad in proportion as they deviate from this, is what Mr. Bentham affirms, and, we will add, proves.<br />
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Again, when Mr. Mill speaks of the corruptive operation of what are called the advantages of fortune, Mr. Lewis comments upon the strange, ties of this sentiment from the writer of a treatise on Political Economy; that is, on the production and accumulation of wealth; and hints, that the work in question must have been composed with an object similar to that of a treatise on poisons. Did it never occur to Mr. Lewis, that Mr. Mill's meaning might be, not that a people are corrupted by the amount of the wealth which they possess in the aggregate, but that the inequalities in the distribution of it have a tendency to corrupt those who obtain the large masses, especially when these come to them by descent, and not by merit, or any kind of exertion employed in earning them?<br />
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To add one instance more, Mr. Lewis falls foul of the often quoted sentence of Tacitus, «that the most degenerate states have the greatest number of laws; in corruptissima republica plurimae leges; a position not only not true, but the very reverse of the truth, as the effect of the progress of civilization is to multiply enactments, in order to suit the extended relations, and the more refined and diversified forms of property, introduced by the improvement of society." Mr. Lewis is a scholar, and understands the words of Tacitus, but, in this case, it is clear, he has not understood the ideas. He has committed what he himself would call an ignoratio elenchi. By a corrupt society, Tacitus (we will take upon ourselves to assert) did not mean a rude society. The author was speaking of the decline of a nation's morality, and the critic talks to you of the improvement of its industry. Tacitus meant, that, in the most immoral society, there is the most frequent occasion for the interposition of the legislator; and we venture to agree with him, thinking it very clear, that the less you are able to rely upon conscience and opinion, the more you are obliged to do by means of the law- a truth which is not only not the opposite of Mr. Lewis's position, but stands in no logical relation to it at all, more than to the binomial theorem.<br />
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These are the blemishes of Mr. Lewis's work. Yet they do not induce us to qualify our high opinion, both of the book and of its author. It is an able, and a useful publication; only, it is not a sufficient dissertation on the use and abuse of the leading political terms.<br />
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We have often thought, that a really philosophical Treatise on the Ambiguities of the Moral Sciences would be one of the most valuable scientific contributions which a man of first-rate intellectual ability could confer upon his age, and upon posterity. But it would not be so much a book of criticism as of inquiry. Its main end would be, not to set people right in their use of words, which you never can be qualified to do, so long as their thoughts, on the subject treated of, are in any way different from yours; but to get at their thoughts through their words, and to see what sort of a view of truth can be got, by looking at it in their way. It would then be seen, how multifarious are the properties and distinctions to be marked, and how few the words to mark them with, so that one word is sometimes all we have to denote a dozen different ideas, and that men go wrong less often than Mr. Lewis supposes, from using a word in many senses, but more frequently from using it only in one, the distinctions which it serves to mark in its other acceptations not being adverted to at all. Such a book would enable all kinds of thinkers, who are now at daggers-drawn, because they are speaking different dialects and know it not, to understand one another, and to perceive that, with the proper explanations, their doctrines are reconcilable; and would unite all the exclusive and one-sided systems, so long the bane of true philosophy, by placing before each man a more comprehensive view, in which the whole of what is affirmative in his own view would be included.<br />
<br />
This is the larger and nobler design which Mr. Lewis should set before himself, and which, we believe, his abilities to be equal to, did he but feel that this is the only task worthy of them. He might thus contribute a large part to what is probably destined to be the great philosophical achievement of the era, of which many signs already announce the commencement; viz. to unite all half-truths, which have been fighting against one another ever since the creation, and blend them in one harmonious whole.<br />
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<br />
• Use and Abuse of Political Terms. By George Cornwall Lewis, Esq. Student of Christ Church, Oxford.—London : Fellowes, 1833.<br />
<br />
<sup id="#plus">+</sup> The greatest English poet of our own times lays no claim to this glorious independence of any obligation to pay regard to the laws of thought. Those whom Mr. Wordsworth honours with his acquaintance, know it to be one of his favourite opinions, that want of proper intellectual culture, much more than the rarity of genius, is the cause why there are so few true poets; the foundation of poetry, as of all other productions of man's reason, being logic. By logic, he does not mean syllogisms in and figure, but justness of thought and precision of language ; and, above all, knowing accurately your own meaning.<br />
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While we are on this subject, we must be permitted to express our regret, that a meet who has meditated as profoundly on the theory of his art, as he has showed assiduously in its practice, should have put forth nothing which earn convey any adequate notion to posterity of his merits in this department; and that philosophical speculations on the subject of poetry, with which it would be folly to compare any others existing in our language, have profited only to a few private friends.<br />
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<sup id="#fn1">1</sup> Mr. Lewis has very properly, in our opinion, spared himself the ostentation candour of mentioning the authors to whom he was indebted, obey being mostly writers of established ten of established reputation. Such studious honesty in disclaiming any private right to truths which are the common property of mankind, generally implies either that the author cares, and expects the reader to care, more about the ownership of an idea than about is Value; or else that he designs to pass himself off as the first promulgator of every thought which he does not expressly assign to the true discoverer. This in one of the thousand forms of that commonest of egotisms, egotism under a shew of modesty. The only obligations which Mr. Lewis with a just discrimination stops to acknowledge, are to a philosopher who is not yet so well known as he deserves to be, Mr. Austin, Professor of Jurisprudence in the University of London.<br />
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A section from Use And Abuse of Political Terms (1832)</div>
by George Cornewall Lewis<br />
<br />
RIGHT, DUTY, WRONG, RIGHTFUL, WRONGFUL, JUSTICE<br />
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When the sovereign power commands its subjects to do or forbear from certain acts, the claim<sup>1</sup> for such performances or forbearances which one person thereby has upon another, is called a right; the liability to such performances or forbearances is called a duty; and the omission of an act commanded to be done, or the doing of an act commanded to be forborne, is called a wrong.<br />
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All rights, therefore, must be subsequent to the establishment of government, and are the creatures of the sovereign power; no claim upon another, which may not be enforced by process of law, i.e. by calling in the assistance of the sovereign, however recommended by moral justice, can, without an abuse of language, be termed a right. The existence of a moral claim may often be a matter of doubt when the facts are ascertained, and one party may demand what the other may not think himself bound in conscience to yield; but, the facts being given, the existence of a right, or a legal claim, can never admit of dispute, as it is defined and conferred by a third party, who will, if required, step in to enforce it.<br />
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Properly, therefore, right signifies a claim conferred or sanctioned by the sovereign power, i.e. a legal right. Sometimes, however, it is used to mean a claim recommended by the practice, analogy, or doctrines of the constitution, i.e. a constitutional right; and, sometimes, a claim recommended by views of justice or public policy, i.e. a moral right.<br />
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By the first and proper sense is meant a claim which may be enforced in a court of law, or by the proper authorities, and which actually exists: by the two last a claim which cannot be enforced by any public authority, and which does not exist. Thus, in the first sense, it is said that a man has a right to his own property, reputation, &c., meaning that he has an available claim which can be enforced by process of law. It is also said that, constitutionally, every British subject who pays taxes has a right to vote for a member of the House of Commons; meaning that such a claim is supported by the practice or doctrines of our constitution. It is also said that all the people have a right to be represented; that they have a right to choose their own governors, to cashier their governors for misconduct, and to frame a government for themselves; that the poor have a right to be maintained by the rich; that the poor have a right to spoil the land-owners, and divide their lands; that the poor have a right to spoil the rich, and divide their property, &c. In the latter cases, the persons who use these expressions mean that, in their opinion, there is a claim founded in justice and expediency, which they call a right; though, in truth, what they mean to express is, that it ought, by the sanction of the legislature, to be made a right.<br />
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Burke's explanation of rights, in fact, amounts to no more than that last stated, though he appears to have intended something very different; as his definition is perfectly consistent with the doctrines which he is professedly combating, and which he held in utter abhorrence. The following passage from his work on the French Revolution<sup>2</sup>, is in answer to those who maintained the doctrine of the natural rights of men. 'The pretended rights of these theorists are all extremes; and, in proportion as they are metaphysically true, they are morally and politically false. The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good; in compromises sometimes between good and evil, and sometimes, between evil and evil.' If this doctrine were admitted, a man would have a right to everything which might appear advantageous to him, and private opinion would be the only rule of law<sup>3</sup>.<br />
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No objection, even on the score of inconvenience, can be made to the use of an equivocal word when its different senses are plain and palpable; as, for example, the word light, which sometimes means the contrary of heavy, sometimes the contrary of dark; or the word duty, which sometimes means a legal or moral obligation, sometimes a tax on a commodity. By such ambiguous terms as these, no one could be misled. But when the two significations lie on each other's confines, the one being perhaps a metaphorical or derivative use of the same word, there is great difficulty in marking the boundaries which the ambiguity always tends to confound; though the distinction is the more important, because, even if the names were different, such near neighbours would be likely to encroach on each other's territories. In the present case, the confusion of legal and moral rules, to which, at all times, mankind are sufficiently prone, is heightened by an additional meaning of the word in question.<br />
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Right is sometimes a substantive, sometimes an adjective. When used as a substantive, it properly signifies a legal claim, and answers to duty. Where the law confers a right on one person, it creates a corresponding duty in another. Wrong, the substantive, signifies the violation of a right. But, when used as an adjective, right expresses agreement with the standard of morality (whatever that may be), and is opposed to wrong, the adjective, that which disagrees with this standard. Thus a right may be right or wrong (i.e. a claim given by law may be just or unjust, politic or impolitic) in the judgement of different persons. The necessity of a legislative sovereignty, or of a power of altering old and enacting new laws, is entirely founded on the supposition that rights may be wrong—a truism which has sometimes been treated as a paradox and an antithesis. If the different senses of right, just pointed out, really coincided ; that is, if all claims founded on justice and sound policy were legal rights, and all legal rights were founded on justice and sound policy, there would be no necessity for deliberative assemblies or legislative enactments, and the whole business of government might be confined to the administration of existing laws.<br />
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This ambiguity, so manifest when pointed out, and so easily detected by a translation into Latin (which has different terms for the substantive and adjective)<sup>4</sup> has yet misled many unreflecting persons, and even some writers of high authority, who might have been expected to keep clear of so obvious a fallacy. Thus Paley, in his Moral and Political Philosophy, b. I, chap. 9, says that 'right is a quality of persons or of actions;—of persons, as when we say, Such a one -has a right to this estate, &c.;—of actions, as in such expressions as the following: It is right to punish murder with death, &c.' The argument by which Blackstone proves the latter part of his definition of municipal law, that it is 'a rule of civil conduct.prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong<sup>5</sup>, 'proceeds entirely on this uncertainty of meaning. 'In order to do this completely,' he says, 'it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, co enforce these rights, and to restrain or redress these wrongs<sup>6</sup>.' If, in defence of Blackstone, it should be said that by right and wrong he only means that which the law enjoins or forbids, then the latter part of his definition is superfluous, and to say that a law is right would be an identical proposition<sup>7</sup>. Hence also Crabb, in his Dictionary of English Synonyms, says, that ' right (the substantive) signifies what it is right for one to possess.' The same confusion of the two very different senses of right is well shown in the following passage, where the argument turns upon the double sense. 'If it be right that the property of men should be protected, and if this can only be done by means of government, then it must be right that some person or persons should possess political power. That is to say, some person or persons must have a right to political power<sup>8</sup>.' The apparent force of this argument rests on a mere verbal fallacy. So the author of the Dictionary of English Synonyms, just cited, states, that a certain conclusion cannot be received, 'unless we admit the contradiction that men have a right to do what is wrong<sup>9</sup>. This instance is perhaps the more worthy of notice, because it occurs in the work of a writer whose professed object was to point out and illustrate the different meanings of words<sup>10</sup>. In the celebrated verse which would represent as a paradox 'The right divine of kings to govern wrong,' the antithesis is only in sound and not in sense: if a sovereign has not the power to enforce his commands, whether right or wrong, that is, whether the subject thinks them right or wrong, he is not sovereign. 'When governors shall be so perfect, as never to propose a measure that is not faultless, and when subjects shall be so infallible in their judgements, and so candid in their dispositions, as universally to perceive and acknowledge this perfection—then, and not till then, may a peaceable and permanent government be established on such principles<sup>11</sup>.'<br />
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It may moreover be observed, that if all rights are the creatures of the sovereign power, and can only be enforced by calling in the assistance of a superior authority; no absolute monarchs or sovereign governors can be said to possess rights, or to be subject to duties, except in a moral sense. A claim which a man gives himself, of which he is alone judge, and which he can alone enforce, may undoubtedly be called a right, though it seems much more precise and simple, in such cases, merely to speak of power; but a sovereign, whether one or many, can never be liable to any legal duties, because a legal duty implies the legal means of enforcing it; and if a sovereign power should be legally forced to any act, it would not be sovereign. That governors have not, as governors, any legal duties, is distinctly stated by Dr. Whately, in a sermon preached before the University of Oxford, although he too speaks of the rights of a governor. 'The governor,' he says, 'is bound to make a good use of his power, no less than his subjects are to obey him; and he is accountable to God for so doing; but not to them; for if this merely conditional right to obedience be once admitted, it must destroy all government whatever<sup>12</sup>.' The attributing of rights to governors appears to have arisen from a confusion of the effects produced by the exercise of the power of a sovereign, and of the right of a subject. A man by hiring a servant acquires a right to his services and obedience; a sovereign issues its commands, and thereby has a claim on the submission of its subjects : whence it is inferred that the claim of the sovereign is of the same nature as the claim of the master; i.e. that they both have a right to the performance of the respective duties. But in the one case, the claim is given by a third party; in the other, it is obtained by -an exercise of individual volition: three parities are necessary to the existence of a legal right, as two parties are necessary to the existence of moral justice. A man cannot be just towards himself, nor can that be a right which A gives himself against B, and A alone can enforce<sup>13</sup><br />
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In this country a mistaken notion as to the rights of subjects has arisen, from confounding the powers of the King and those of the Parliament. The people have rights as against the King; and hence it is correct to say that Charles the First and James the Second violated the rights of their subjects: without having the legislative sovereignty, they commanded acts to be done which were contrary to law. But the people have no rights as against the Parliament, or the whole sovereign body; and hence such expressions as the Parliament withholding or refusing the rights of the people, are not only unmeaning and absurd, but also mischievous, as they tend to encourage the idea that members of that body are legally, as well as morally, answerable for their acts.<br />
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In a like manner, the rule of the English constitution that the King can do no wrong, appears to be an absurdity, and startles some who hear it, only because a breach of legal right is confounded with a breach of moral duty. Neither the whole sovereign body, nor any part of the sovereign body, so far as it is sovereign, can do a wrong, that is, infringe a right; as that implies a superior power to redress the wrong or enforce the right, which, by the supposition, does not exist. All orders issued by a competent authority are necessarily dispunishable; but this immunity does not extend to those who execute them, if contrary to law. For example, the King may order his ministers to do an illegal act, but they will obey at their peril. The House of Commons may order their serjeant-at-arms to arrest a man for an act not falling within their jurisdiction, but their officer will obey at his peril. If the House of Lords, or House of Commons, were to go in a body and kill a man, they would be guilty of murder, because this would not be an act done in virtue of the sovereign power which in their collective capacity they severally possess for certain purposes<sup>14</sup>. This is stated in substance by Blackstone<sup>15</sup>, though his expressions are not strictly accurate. 'The supposition of law is,' he says, 'that neither the King nor either house of Parliament (collectively taken) is capable of doing any wrong ; since, in such cases, the law feels itself incapable of furnishing any adequate remedy; for which reason, all oppressions which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule or express legal provision.' He afterwards states, that the maxim that ' the King can do no wrong,' means two things: 1. 'That whatever is exceptionable in the conduct of public affairs, is not to be imputed to the King, nor is he answerable for it, personally, to his people;' and, 2. 'That the prerogative of the crown extends not to do any injury<sup>16</sup>.' As to the first of these rules, it is clear that the King cannot be answerable for any act done by him in his capacity of sovereign; as this immunity is implied in the idea of supreme power: while the second is merely a statement, in different terms, of the proposition that 'The King can do no wrong'; for King, putting prerogative of the crown; and for 'wrong, 'injury. By 'injury,' a breach of law can only be meant; as all political parties think that the King does that which is hurtful to the nation, when he chooses his ministers from their opponents<sup>17</sup>. The statement of this rule by Hume, in his Essay on Passive Obedience, is very precise, and seems framed for the express purpose of cautioning persons against the superficial error, so often committed, of confounding a legal injury with a moral impropriety. The King of England, he says, 'though limited by the laws, is, in a manner, so far as regards his own person, above the laws, and can neither be questioned nor punished for any injury or wrong which may be committed by him<sup>18</sup>.'<br />
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Before the word 'right' is dismissed, it may be useful to notice some of the epithets applied to it; the number, variety, and discordancy of which are almost past belief: though,' when they come to be examined, most of them will be found to be either unmeaning or inapplicable. The following passage occurs, as spoken by Dr. Johnson, in a conversation preserved by Boswell<sup>19</sup>: 'Every man has a right to liberty of conscience, and with that the magistrate cannot interfere. People confound liberty of thinking with liberty of talking; nay, with "liberty of preaching. Every man has a physical right to think as he pleases; for it cannot be discovered how he thinks. He has not a moral right, for he ought to inform himself, and think justly.' Here 'physical right' must mean power; 'moral right' appears to mean 'legal right,' for Johnson never could have intended to say that a man is, in conscience, bound to conceal opinions which he thinks true: the doubt would rather be the other way, whether a man is justified in concealing what he thinks true. On another occasion he said that 'there seems to be in authors a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should, from its nature, be perpetual<sup>20</sup>.' This expression is manifestly founded on the erroneous supposition, that a right to a tangible is more corporeal than a right to an intangible object; but elsewhere he uses a more common epithet, when, speaking of government, he says that 'if the abuse be enormous, Nature will rise up, and, claiming her original rights, overturn a corrupt political system<sup>21</sup>.' It is, however, a contradiction to speak of original rights, if by original is meant anterior to government; for, as has been shown above, the notion that 'right is altogether an abstract thing, which is independent of human laws and institutions<sup>22</sup>,' is not only not true, but is the direct contrary of the truth. The verse of .Dryden, in the Wife of Bath's Tale, that 'Sovereign monarchs are the source of right,' expresses the truth, but not the whole truth; as not only sovereign monarchs, but all sovereign legislatures, whether of one or many, are, and are alone, the sources from which all rights flow. Yet we hear of original rights, natural rights, indefeasible rights, inalienable rights, imprescriptible rights, hereditary rights, indestructible rights, inherent rights, &c., where there is no pretence of legislative sanction: indeed the only object of using these names is to induce the legislature to convert these supposed rights into real rights, by giving them the sanction of law. The phrase, natural right, takes its origin from the doctrine of a state of nature, which will be more fully explained below<sup>23</sup>- It appears to signify a claim recommended by natural law, or by those rules which were recognized by common consent, when mankind were in a state of nature, An indefeasible right-is a right which man enjoyed in a state of nature, and which he only surrendered conditionally at the making of the social compact; so that nothing has since been able to defeat or destroy it, and it is ready to be revived at any time. An imprescriptible right is a right which was prior to the social compact, and which continues to exist without being subject to prescription or failure by lapse of time. An inalienable right is a right which cannot be alienated from a man. Indestructible rights, inherent rights, hereditary rights, birth rights of liberty, &c., appear to have nearly the same meaning; viz. that they are dormant rights, never exercised by the possessors, and not extinguishable by any law. In fact, however, these imprescriptible, inalienable, indefeasible, rights, in most cases never have been rights, or, if they have, long since were alienated and defeated by the sovereign power. These various expressions have all taken their origin from the theory of the state of nature and the social compact; but they are frequently used by persons who have never heard of this absurd and mischievous doctrine, and would perhaps reject it if they knew it. All that those persons mean is, that, in their opinion, the claims which they call rights ought, in sound policy, to be sanctioned by law. It is the duty of such persons to show that sound policy requires what they require; but as this would require a process of reasoning, and as reasoning is often both hard to invent and to understand, they prefer begging the question at issue by employing some of the high-sounding phrases just mentioned.<br />
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Rights are, moreover, divided into political or civil rights, and private rights: the meaning of which division will be explained elsewhere<sup>24</sup>.<br />
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'Vested rights'<sup>25</sup> is another expression which has been much used of late years. In its legal sense, 'vested' is opposed to 'contingent,' and expresses a right of which the next possessor is ascertained, whenever the prior right to the same object may determine; as opposed to a right of which the next possessor is not so ascertained<sup>26</sup>. But its political sense (with which alone we are now concerned) is widely different from its legal acceptation, and appears to have no connexion with it whatever<sup>27</sup>. When a legislature passes a law, not for any temporary purposes, nor limited as to the time of its operation, and which therefore may be reasonably expected to be permanent—and persons, confiding in its permanency, embark their capital, bestow their labour, or shape the course of their life, so that their only hope of success is founded on the existence of the law—the rights which they have acquired in the reliance upon its continuance are termed 'vested rights'; and persons in this situation are considered as having a moral claim on the legislature for the maintenance of the law, or at least for the allowance of a sufficient time to withdraw their investments, and to take the measures necessary for guarding against the loss consequent on so large a change. When duties are imposed for the purpose of excluding a cheap foreign commodity, in order to enable it to be produced at a higher price at home, the persons who carry into effect the intentions of the legislature, by engaging in the favoured manufacture, are considered as having a vested right in their undertakings, and possessing a claim to notice of a reasonable length, before the duties are removed; for although their profit is not larger than it would have been in any other unprotected branch of trade, and although the public lose the difference between the prices of the foreign and native commodity; yet having, in consequence of the encouragement of the legislature, once engaged in the protected trade, they cannot, at a moment's warning, withdraw their capital and invest it elsewhere, without incurring a certain loss. In consequence of the high duties on French, Portuguese, and Spanish wines, many persons were induced to invest their capital in the making of wine at the Cape of Good Hope. They produced an inferior commodity at a higher price: but when it was proposed to equalize the import duties on wines, it was allowed that the vested rights of these persons ought to be respected, and that they were fairly entitled to have a sufficient time to engage in new speculations. All preferences given to particular classes of traders create vested rights of this description; and it is for this reason that, although the existence of such preferences is an unmixed evil, their abolition is very far from being an unmixed good.<br />
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A vested right may therefore be described as a right of investment<sup>28</sup>; giving to its possessor a moral claim upon the legislature, for the permanency or tardy abolition of a law, which he has gained by employing his capital or labour in adventures only compatible with the existence of the law. Being founded on the principle of not disappointing expectations, it is founded on a principle of the wisest and most enlarged policy; but the doctrine of vested rights must not be stretched too far, as there is scarcely a right on which some expectations are not founded, and which does not, in some degree, serve as a guide of conduct: it can only be admitted where the loss would be great, and the probability of the law being repealed or modified was inconsiderable.<br />
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Of vested rights, that on which the greatest number of calculations and expectations is founded, and which, in most states, offers the fairest hope of permanency, is the right of property. There is scarcely a step in a man's life, if it has any prospective view, which is not taken in reference to his property. His bodily and mental habits, his connexions, whether of friendship or marriage, are all formed with reference to the rank of society in which his property places him. A man is brought up by his parents, and insensibly adapts himself, to the situation - which he is likely to fill, A poor man suddenly made rich is not more likely to be happy, and is much less likely to do good to others, than a rich man suddenly made poor<sup>29</sup>. There is no change in the condition of human life, except the change from freedom to slavery or imprisonment—no deprivation of rank, honours, dignity, political power, military power, or sovereign dominion—which blights so many prospects, which chills so many hopes, which brings such bitter disappointments, and such painful humiliations<sup>30</sup>, which offers such violence to a man's familiar habits and thoughts, and forces him into courses for which he is so little fitted, as the change from affluence to beggary. The interruption of this right takes a man from a station 'where he is contented,, and which he is fitted to fill, to put him in a station where he will be discontented and dangerous, and which he is not fitted to fill, The effect on the person who is supposed to be benefited by his loss, need not be considered; as, at times when this right is interrupted, the resistance is usually so great, that although the plundered are impoverished, the plunderers are seldom enriched. It is for these, among many other reasons, that the right of property is one of those vested rights which should be most sparingly and tenderly interfered with by a wise legislature; but, like all other rights, it is the mere creature of the sovereign power, which can at any moment destroy what it created: and to deny the power of the legislature to dispose of it at pleasure, is to confound expediency and justice with fact, and to conclude that what ought not to be done, cannot be done.<br />
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Wrongful and rightful are the adjectives of wrong and right the substantives; and differ from wrong and right the adjectives, inasmuch as the former signify that which agrees or disagrees with the rule of law, the latter that which agrees or disagrees with the rule of morality.<br />
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Justice is commonly used by political writers in the sense of moral justice. In this sense alone it is applicable to acts of the legislature. Sometimes, however, it is used as identical with law, as when we speak of the administration of justice, of courts of justice, &c.<sup>31</sup><br />
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<sup>1</sup> There does not appear to be any reason why claim or requisition should not be considered as the genus of rights; though Mr. Bentham (Principles of Morals and Legislation [224 n. in the Clarendon Press edition]) says, that right has no superior genus.<br />
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<sup>2</sup> Reflections on the Revolution in France, ed. 1792, p. 94.<br />
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<sup>3</sup> 'When I went into the house first,' says one of the witnesses examined on the trial of Watson for high treason, ' I went in company with a nobleman's servant who wore a livery; they seemed discoursing among themselves for a little while, and then turned round and observed that the crest upon his button was the crest of a lord, and they asked him who made his master a lord. He could make no answer, not readily, to this question that was put to him. After a little while they turned to me, upon which I explained it as well as I knew how: and after my explanation, they asked me how this nobleman came to be possessed of so much landed property as he was possessed of; and they turned round to the servant, and told him he had a right to as much land as his master, and that the time was now fast approaching when he would be as good a man as his master, and possess as much property; and also asked by what right he held this property.'—2 Watson's Trial, 65. This passage affords a striking example of the effect which may be produced on ignorant persons by the ambiguity of imposing terms, and the employment of (what Mr. Bentham has termed) question-begging appellatives, [James Watson, surgeon, was tried for high.treason in 1817, and acquitted: see State Trials, ed. Howell, vol. xxxii.]<br />
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<sup>4</sup> Jus means a right, the substantive ; honestus' or rectus, right, the adjective. On the other hand, the Latin language has an ambiguity of jus, from which the English is free, viz. that it means both law and right, an ambiguity which has led Blackstone into the most fearful errors.—See Mill's British India, vol. i. p. 195; and Austin's admirable Outline of a Course of Lectures on Jurisprudence in the London University, p. 48. (London, 1831.) The French droit, and the German recht, have the ambiguities both of the Latin and English words, for they signify lex, jus, and rectus. Ambiguities of words are often brought out in translation ; for instance, lingua in Latin and Italian, in English is sometimes rendered by tongue, sometimes by language. The most perplexing ambiguities, however, run through all the commonly known languages of civilized nations. It may be remarked as a singular circumstance, that the Greek language should possess no term for right, or jus. The treatise of Aristotle entitled δικαιώματα πόλεων appears to have heen upon the rights, or privileges, of different states (see Neumann, Aristotelis πολιτειών fragments,, p. 43): but the word δικαίωμα never came into general use in the sense of jus. Sir J. Mackintosh, misled by a false reading Πολέμων for πόλεων, represents this as a treatise on the laws of war.—On-the Law of Nature and Nations, p. 16.<br />
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<sup>5</sup> I Com. 44. Introd. § 2.<br />
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<sup>6</sup> I Com. 53.<br />
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<sup>7</sup> It is however obvious, that he uses right and wrong in the former sense, as he quotes the words of Cicero, repeated by Bracton, that a law is ' sanctio justa, jubens honesta, et prohibens contraria.'—1 Com. 122.<br />
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<sup>8</sup> Edinburgh Review, vol. lii. p. 364. [The quotation is from Macaulay's article on the Civil Disabilities of the Jews.]<br />
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<sup>9</sup> Crabb's English Synonyms, in Right.<br />
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<sup>10</sup> Mr. Bentham, in ins Principles of Morals and Legislation [p. 323, Clarendon Press edition], points out an ambiguity of the English word law, which signifies both a single law, and the whole body of laws, or (as we say) the law ; and appears to lament that we have not, like the Germans, appropriated the word right to the entire corpus juris, i.e. to law in its collective sense. Doubtless it would be desirable to have two different words to express the two ideas distinguished by Mr. Bentham; but it cannot be wished that any additional burden should be laid on the term right, which has already a sufficient weight of meanings to sustain.<br />
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<sup>11</sup> Whately's Sermon on Obedience to Rulers [in Bamplon Lectures, &c, third edition, p. 295].<br />
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<sup>12</sup> Ibid. p. 289.<br />
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<sup>13</sup> [It must not be forgotten that a civilized government voluntarily submits to the rules of law which it applies to subject persons. Thus, for example, in employing a member of the civil service, the government virtually makes a contract with him, and acts as if it were bound by the contract.]<br />
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<sup>14</sup> [If the Queen were to kill a man, the act would he murder, but the Queen could not he tried for it, because she is personally exempt from the jurisdiction of the courts.]<br />
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<sup>15</sup> I Com. 244. Boswell, in his Life of Johnson [ed. Birkbeck Hill, i. 423], reports a conversation on this point, between Goldsmith and Johnson. Goldsmith argued, that 'as the King might, in the exercise of his regal power, command and cause the doing of what was wrong, it certainly might be said, in sense and in reason, that he could do wrong.' (This is what the logicians call an ignoratio elenchi; the question was, whether the King could do a wrong.) Johnson in answer, among other things, said, 'We hold the King can do no wrong, that whatever may happen to be wrong in government may not be above our reach by being ascribed to majesty. Redress is always to be had against oppression by punishing the immediate agents. The King, though he should command, cannot force a judge to condemn a man unjustly; therefore it is the judge whom we prosecute and punish.' Johnson's sentiments are quite accurate; -though he too falls into the common errors of confounding wrong, an injury, with wrong, improper.<br />
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<sup>16</sup> 1 Com. 246.<br />
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<sup>17</sup> 'The Attorney-General, in his speech in Hardy's trial, cites a passage from an American work communicated to an English political society, where it is said, that 'in government, the maxim being that a King can do no wrong, the maxim ought to be that he can do no good.'—See Erskine's Speeches, vol. iii. p. 199. If the author of this passage had understood the maxim which he objects to, so far from thinking that his remark was pointed and antithetical, he would have seen that it is absolutely unmeaning. Mr. Hallam, in his History of the Middle Ages, vol. ii. p. 243, 4to ed., says, that 'In the prudent fiction of the English law, no wrong is supposed to proceed from the source of right.' This statement is not correct; it is not a legal fiction, bnt a plain truth, that the King can do no wrong. It is another maxim of English law, that there is no wrong without its remedy: and against the acts of the King, no remedy is, or can be, provided by law.<br />
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<sup>18</sup> [Essays, ed. Green and Grose, i. 463.]<br />
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<sup>19</sup> [Life of Johnson., ed. Hill, ii. 249.]<br />
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<sup>20</sup> [Ibid. ii. 259.] Burke, in his Reflections on the French Revolution, also speaks of metaphysical rights; where, by metaphysical, he appeals to mean imaginary, or unreal.<br />
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<sup>21</sup> [Life of Johnson, ed. Hill, i. 424.]<br />
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<sup>22</sup> Crabb's English Synonyins, in Right.<br />
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<sup>23</sup> In the word Nature.<br />
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<sup>24</sup> In the word Political.<br />
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<sup>25</sup> This passage is noticed and commented upon by Austin, in his fifty-third lecture.<br />
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<sup>26</sup> [Rights in expectancy are vested or contingent; rights generally are said to be vested when there is an existing ascertained person entitled to exercise them.]<br />
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<sup>27</sup> [The two are really the same. It is a rule of policy, commonly observed by legislative authorities, that valuable rights, vested in private persons, should not be taken away without compensation.]<br />
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<sup>28</sup> [This is quite incorrect. If I give a penny to a beggar, he acquires a vested right to the coin ; but there is no question of investment on my part or on bis.]<br />
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<sup>29</sup> [The author must have meant to say, 'than a rich man who has received the training which befits his position.']<br />
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<sup>30</sup> It is to this that Juvenal probably refers, when he so feelingly says 'hat ' Nil habet infelix paupertas durius in se<br />
Quam qnod ridicnlos homines facit.'—iii. 152. Men are not ridiculous simply by being poor; it is when they become poor, that the shifts and expedients to which they are driven, in order to conceal their poverty and keep up a semblance of their former wealth, too frequently make them ridiculous.<br />
<br />
<sup>31</sup> 'The legal criminal intention necessary in criminal law is not identical in strictness with the evil intention imputable in morals. It is enough, that there exists an intention to do the act. It is not necessary that the party should know that the act is morally wrong. It makes no difference even if the party believe that the act is morally virtuous. ... A case like that of Martin the incendiary will illustrate the distinctions. There could be no pretence for his acquittal, supposing the jury of opinion that he believed that it was morally or religiously right to burn York Minster, but knew, at the same time, that it was legally wrong. If they meant by their verdict to express that his understanding was too disturbed to be capable of knowing that it was legally wrong, the acquittal was correct.'—Edinburgh Review, vol. liv, p. 221. 'There Could be no doubt that Martin was aware that the burning of York Minster was a criminal act, as his contrivances for escaping observation in committing the deed evinced considerable forethought; and the same remark applies to nearly all cases of crimes committed by madmen. If madmen were acquitted only when proved to be ignorant of the law, they would be acquitted, not on the ground of their madness, but on quite a different plea, of which others, besides madmen, might avail themselves. The true state of the question seems rather to be, whether, when a man's mind is so diseased that he believes himself to be driven by an overwhelming duty, whether moral or religious, to the commission of an act which he knows to'be illegal, he is to be considered as a person whose punishment can be useful to society, and whom society can hold as responsible for his acts. A merely depraved man may think murder or robbery indifferent acts; he may deny the existence of right and wrong, or of all moral rules whatever; but if he commits murder or robbery, he is properly amenable to punishment. But a madman is not indifferent to a moral duty; he is hurried on to a violation of law by the suggestions of a deranged understanding and a heated imagination, which seem to him far to outweigh all other considerations. A man in this state of mind is no more an accountable political agent, and a fit subject for the animadversion of the law, than he is an accountable moral agent, and a subject for moral disapprobation: as a moral agent, his errors can only be pitied; as a political agent, he must only be prevented from doing further mischief. [For the trial of Jonathan Martin, see the Annual Register for 1829, p. 301.]<br />
<br />
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Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-69854993160539559472015-06-27T13:10:00.002+01:002015-06-27T13:16:19.294+01:00John Austin On Vested Rights<div style="text-align: justify;">Manually corrected from <a href="https://archive.org/details/provincejurispr00austgoog">John Austin's Province of Jurisprudence Determined - volume 3</a></div><div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhmGylfbOIdYk09t9nfcZCLPSpJ9BzzpHGYE7vJ9htz9gjotvJ1GgcKJ1e9x5XOQplNQIZU1bwKI3AnYRvD7DqiF5StXem8EuUZdV8cFNleip5CuKNa8-P_QWkr6uz5lGKUJXiNrLLa94NC/s1600/John_Austin.jpg" imageanchor="1"><img border="0" height="250" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhmGylfbOIdYk09t9nfcZCLPSpJ9BzzpHGYE7vJ9htz9gjotvJ1GgcKJ1e9x5XOQplNQIZU1bwKI3AnYRvD7DqiF5StXem8EuUZdV8cFNleip5CuKNa8-P_QWkr6uz5lGKUJXiNrLLa94NC/s0/John_Austin.jpg" width="150" /></a><br />
<br />
LECTURE LIII</div><br />
In this evening's discourse, I shall consider the distinction between vested and contingent rights.<br />
<br />
In order to the existence of a right, the two following (amongst other) essentials must concur:—1st. A determinate person or persons, presently existing, in whom the right resides. 2ndly. That the title, mode of acquisition, or investitive fact, to which the law annexes the right, be presently consummate or complete.<br />
<br />
Hence it follows, that the epithet " present" or " vested," as applied to a right, is superfluous or tautological. Every right, properly so called, is of necessity present or vested: that is to say, it presently resides in, or is presently vested in, a present and determinate party, through the title, or investitive fact, to which the law annexes it as a legal consequence or effect.<br />
<br />
When we oppose a vested or present, to a future or contingent right, we are not, I apprehend, opposing a right of one class to a right of another class, but we are rather opposing a right to the chance or possibility of a right. Accordingly, the contingent right of the apparent or presumptive heir to rights which the party presently entitled may alien from him, is frequently styled, not a right, but spes successionis: that is to say, the chance or possibility, that the heir, who has not presently a right, may hereafter acquire one. And, generally, a contingent right is frequently styled "spes; spes incerla; hoffnungarecht" or hope-right: a present chance, or a present possibility, that a right may hereafter arise, and may vest in a person in being, or hereafter to be. When, then, in compliance with custom, I use the expressions "vested and contingent rights," I am not opposing rights of a class to rights of another class, but right* to chances or possibilities of rights.<br />
<br />
And here I would advert to a meaning, frequently annexed to the expressions "vested rights," which is mentioned in Mr. Lewis's treatise " On the Use and Abuse of Political Terms."<br />
<br />
When it is said that the legislature ought not to deprive parties of their "vested rights" all that is meant is this: that the rights styled "vested" are sacred or inviolable, or are such as the parties ought not to be deprived of by the legislature. Like a thousand other propositions, which sound speciously to the ear, it is either purely identical and tells us nothing, or begs the question in issue.<br />
<br />
If it mean that there are no cases in which the rights of parties are not to yield to considerations of 'expediency, the proposition is manifestly false, and conflicts with the practice of every legislature on earth. In every case, for example, in which a road or canal is run by authority of parliament through the lands of private persons, the rights, or vested rights, of the private owners are partially abolished by the legislature. They are compelled to yield up a portion of their rights of exclusion, and to receive compensation agreeably to the provisions of the Act.<br />
<br />
When the expression "vested right" is used on such occasions, it means one or another of two things:—1st. That the right in question ought not to be interfered with by the legislature; which (as I have remarked already) begs the question at issue; or, 2ndly, that, in interfering with rights, the legislature ought to tread with the greatest possible caution, and ought not to abolish them without a great and manifest preponderance of general utility. And, it may be added, the proposition, as thus understood, is just as applicable to contingent rights, or to chances or possibilities of rights, or to vested rights, or rights properly so called. To deprive a man of an expectancy, without a manifest preponderance of general utility, were just as pernicious as to deprive him of a right without the same reason to justify the measure.<br />
<br />
Before I proceed to contingent rights, or to chances or possibilities of rights, I must remark that vested rights, or rights properly so called, are divisible into two classes;— 1st Present or vested rights which are coupled with a present right to enjoyment or exercise: 2ndly. Present or vested rights which are not coupled with a right to present enjoyment or exercise.<br />
<br />
For example: If I am absolute owner of land or a moveable, not subject to a right in another of limited duration, I have not only a present right to or in the subject, but also a right to the present possession of it: that is to say, a present right to enjoy or exercise my present right of ownership.<br />
<br />
But if the subject be let to another, I have a present right of ownership without a present right to exercise my right of ownership: I have merely a reversion, expectant on the determination of the lease, and which, till the lease determine, cannot take effect in possession.<br />
<br />
Or if a legacy be given to an infant, but with a direction in the will that the legacy shall not be paid to him till be come of age, he has a present or perfect right to the legacy, although he cannot touch it before he shall become adult. For if he should die before he come of age, the legacy would not lapse, (or the gift would not be inoperative), but the legacy would pass to the successors of the legatee, and not to those of the testator. It is not a gift conditioned to take effect in case the infant shall come of age, but an absolute gift with a direction suspending the payment to him until he shall come of age. If he should die before be come of age, 1) is successors would be entitled to present payment, as well as to a present right in the subject of the bequest.<br />
<br />
A right, therefore, may be present or vested, although the right to enjoy it or exercise it, be contingent or uncertain. Or, in other words, a present and certain right to possession is not of the essence of a present and certain right.<br />
<br />
For example: In the case of the legacy, to which I have just adverted, it is presently uncertain whether the infant will over be entitled to the payment: but still he has a present right to the subject of the bequest, inasmuch as the right would pass to his successors though he himself were to die before the period fixed for payment.<br />
<br />
Again: In every case of a vested right, expectant on the determination of a preceding right, the right of the expectant to possession or enjoyment is necessarily uncertain. For, though he has a present or perfect right, to take effect ill possession on the determination of the preceding right, ha may die himself (or even die without representatives capable of enjoying the expectancy), before the preceding right shall come to an end.<br />
<br />
The distinction which I have tried to explain ought to be carefully marked. For it is often supposed, even by writers who commonly perceive the distinction between vested and contingent rights, that a right to present enjoyment is of the essence of a present right: or, what comes to the same thing, that a right of which the enjoyment or exercise is uncertain is necessarily an uncertain or contingent right.<br />
<br />
[Examples:—Blackstone, vol. ii. p. 163. " Of estates in possession whereby a present interest panes to and resides in the tenant, not depending on any subsequent circumstance or contingency, etc" as if a right not in possession might not be coupled with a present interest.]<br />
<br />
I have said already, that in order to the existence of a present right, or in order to the existence of a right properly so called, the two following (amongst other) essentials, most concur:—1st. A determinate person or persons, presently existing, in whom the right resides, or in whom it is vested. 2ndly. That the title, mode of acquisition, or causa, to which the right is annexed as a legal consequence or effect, be presently consummate or complete.<br />
<br />
Hence it follows, that a right is contingent in either of the following cases:—1st. The right is contingent, if the person to whom it is destined or determined, (or in whom it is to reside or vest,) be not presently existing. In this case it is supposed that the events constituting the title whereon the right is to arise have already happened wholly or in part: but that though the title be presently consummate, the right nevertheless is presently contingent, inasmuch as the person to whom it is determined may never exist to take it.<br />
<br />
2ndly. The right is contingent, if the person to whom it is determined be presently existing, but the title, or mode of acquisition, whereon it is to vest in that person, be not presently consummate, and never may be.<br />
<br />
In this last case, it is necessarily supposed that the title is complex (or consists of two or more successive events): that one or more of those events has already happened: but that one or more of those events has not yet happened, and may never happen.<br />
<br />
For example: If land be now given by deed or will to A for his life, and after A's death to the eldest son (now unborn) of B, in tail or in fee, the right which is determined by the gift to the unborn son of B is contingent. By the gift itself the title is presently complete: for if B had now It son, the estate in tail or in fee would now be vested in him, although his right to possession, or to the enjoyment or exercise of his right, would not begin till after the determination of A's estate for life. But though the title is presently consummate, the right nevertheless is presently contingent i for it is presently uncertain whether B will have a son, and whether the persou to whom the right is determined will ever exist.<br />
<br />
Again: If land be given to A for his life, and, in case B (a person now existing) shall survive A, to B in fee, the right which is determined by the gift to B and his heirs general is presently a contingent right. For though the person to whom it is determined is now in existence and capable of taking it, the title, or mode of acquisition, whereon the right is to arise, is presently inchoate only, and perhaps will never be consummate. By the gift to B, in case he shall survive A, a part only of the complex title has presently happened. Before it can be consummate, and the right determined to B can vest or come into existence, A must die, leaving B surviving him: which event, forming a part of the entire complex title, has not yet occurred, and possibly may never occur.<br />
<br />
Wherever, therefore, the person to whom the right is determined is not presently in being, or wherever the title is presently inchoate, and its consummation is presently uncertain, the right is contingent: that is to say, there is not properly a right, (residing, as a right must do, in a present person or persons), but a present chance or possibility that a right may arise hereafter, and may reside in the person or persons, existing or to exist, to whom it is determined or destined.<br />
<br />
The two grounds of uncertainty to which I now have adverted may happen to exist together in one and the same case: that is to say, the person to whom the right is determined may not be yet in being, and the title determining the right to the person may yet be merely inchoate, and its consummation contingent. Insomuch that the right would be presently contingent, although the party were* presently existing.<br />
<br />
For example: If an estate were given to the eldest son of B, (B having presently no son) on condition of B or bis son doing some given act, the right would be contingent in two ways. For it is uncertain whether the person to whom the right is determined will ever exist. And, though the person presently existed, the deed or performance which is a part of the entire title, would be contingent. Until B have a son, and B or his son do the given act, there is no right properly so called, but a mere chance or possibility that a right may arise and vest in a given party.<br />
<br />
As a further example of contingent rights, I may mention the spas successionis which resides in the presumptive or apparent heir: meaning, for the present, by the heir, the person who takes from the domino*, or absolute owner, in the way of succession ab intestato.<br />
<br />
Strictly speaking, the apparent or presumptive heir is not heir. For nemo est haeres vicentis. In order to the existence of the relation between the predecessor and the successor, the predecessor, in the case of heirship, must have died: that is to say, must have died physically, or must have died civilly. By the apparent heir, we mean the person who would be heir presently, if the party, to whom he is heir apparent, presently died intestate. By the presumptive heir, we mean the person who would be heir presently, if the party presently died intestate, and no person entitled to take as heir in preference to the presumptive heir came into existence before the decease.<br />
<br />
Now it is manifest that the right of the apparent heir is a contingent or uncertain right. Before he can acquire as heir properly so called, he must not only survive the party to whom he is heir apparent, but that party must die intestate; and, in case the subject of the uncertain succession be some single right, and not the university or aggregate of the party's rights, that party must also die without having aliened the right in his lifetime.<br />
<br />
The right of the presumptive heir is more uncertain still For before be can acquire as heir properly so called, the party to whom he is heir presumptive must die in his own lifetime; the party also must die intestate, or intestate and without aliened the right by act inter vivos; and no party entitled to the heritage in preference to the presumptive heir must come into being, between the time present and the happening of all those other contingencies.<br />
<br />
Such is the influence of words over the understanding, that I thought, at first, the right in question was not a contingent right: that it was a present or vested right liable to end on certain contingencies, that is to say, the death of the so called heir before the decease of the party to whom he is presently heir (apparent or presumptive); alienation by the party in the way of will or otherwise; and so on.<br />
<br />
But this difficulty arose from the name which is improperly to the apparent or presumptive heir. In truth he is not heir: for nemo est haeteres viventis. He is merely the person who will be heir in case certain contingencies shall conspire to cast the heritage upon him. He has not a present or perfect right; but he has merely an inchoate right which may become consummate, in case certain facts necessary to the completion of his rights shall arise hereafter in his favour. And, accordingly, his so-called right is commonly called spes successionis : that is to say, not a right, but a chance or possibility that he may acquire a right.<br />
<br />
The test, then, of a vested right (or of a right as opposed to contingent right or to the chance or possibility of a right) is, I apprehend, this:--<br />
If the right be perfectly acquired, or if the whole series of facts necessary to its existence have already happened, the right is present or vested, or (in other words) is a right. If the right be not perfectly acquired, or if that whole series of facts be presently incomplete and may never become consummate, the right is contingent or uncertain, or is rather a chance or possibility that a right may hereafter arise.<br />
<br />
And in order to the perfect acquisition of the right, or to the completion of the series of facts whereon the right arises, two things must conspire.<br />
<br />
1st. The title to which it is annexed must be consummate: that is to say, the fact (or the whole series of facts), constituting the title, must have happened already.<br />
<br />
2ndly. The person to whom it is determined by the title must have come into existence, and must actually be entitled to the right, or (if he have died, and the right be transmissible), must have transmitted it to his own successors.<br />
If the title be not consummate, or if part of it consist of a contingency or of a fact which may never happen, the right is presently contingent. And though the title be consummate, the right also is presently contingent, in case the title determine it to a person who is not yet in existence For, to the being of a perfect right, the existence of a person in whom it resides is not less requisite, than the consummation of the title by which the right is vested in him.<br />
<br />
I apprehend that a right is contingent, in case the title be incomplete and may never become consummate, although the completion of the title depend upon the will of a present party to whom the title determines the right. This, for example, is the case, in the Roman Law, where a party dies intestate, but the heritage is not cast on the apparent or presumptive heir ipso jure: that is to say, where the heir, in order to the completion of his title, or in order that he may become heir perfectly and trudy, must adire haeredilatem, or accept the heritage.<br />
<br />
Until he accept the heritage, he has a right deferred or proffered by the law (jus delalum), but he has not a right fully acquired (jus acquisitum): so that if he repudiate the inheritance, it passes over to a party who takes aa heir to the intestate, and not through the party to whom the heirship has been merely proffered. In this case, the party who has jus delatum has merely -a contingent right, although the happening of the contingency necessary to the consummation of bis title, depends upon his own will.<br />
<br />
The same may be said of the right of the heir (according to the law of England), who baa not completed his title, upon the death of the ancestor, by doing some act which amounts to seisin: that is to say, taking possession (physically or constructively), of the laud which has descended from the ancestor. The ancestor being dead, intestate and without otherwise aliening, the heir has jus delatum (to borrow the language of the Roman Law), which he may turn into jus acquisitum by an act of his own: that is to say, by taking seisin or possession of the subject. But, until he fully acquire by seisin or possession, he has not a present or vested, but merely a contingent right. Insomuch that if he die before seisin, the land will not descend through him, but will descend to some party who acquires as immediate successor to the predeceased ancestor.<br />
<br />
The same may be said of parties who are entitled to probate or to take out letters of administration. By virtue of the will, or of the relation wherein they stand to the deceased, they have jus delatum.- which, by proving the will, or by taking out administration, they may convert into jus acquisitum. But they are not ipso jure representatives of the deceased; and must do a contingent act, depending on their own will, before their inchoate right can become consummate.<br />
<br />
If, then, a right be determined to a party who may never come into existence, or if the title be incomplete, and may never be consummate, the right is contingent; that is to say, it is presently uncertain whether the right will ever arise. And this is the only mark of a contingent right which I have been able to discover.<br />
<br />
Mr. Fearne, in his beautiful essay "on Contingent Remainders and Executory Devises" lays down the following, as the invariable test by which a vested remainder is distinguished from a contingent one. "It is not the uncertainty of ever taking effect in possession, that makes a remainder contingent The present capacity of taking effect in possession, if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent."<br />
<br />
Now I cannot help thinking that this test of a vested remainder is fallacious.<br />
<br />
For we may imagine a contingent remainder which is presently capable of taking effect in possession, in case the preceding estate were presently to end.<br />
<br />
For example: If land be given to A for life, and, in case B survive A, to B in fee, B has a contingent remainder: For it is uncertain whether B will survive A. And yet the estate of B, so long as B lives, is presently capable of taking effect in possession, in case A's estate presently determined. For if A were now to die, leaving B him surviving, B's estate would not only become vested by the happening of the given contingency, but, by the happening of the same event, would also take effect in possession: that is to say, B would become entitled to a present or perfect right coupled with a right to present enjoyment or exercise.<br />
<br />
The present capacity of taking effect in possession, if the possession were now to become vacant, will not then distinguish a vested from a contingent remainder: inasmuch as there are contingent as well as vested remainders to which that same capacity is incident.<br />
<br />
But whether Mr. Fearne's test be or be not a test of a vested remainder, it certainly will not distinguish vested rights generally from contingent rights generally. For, by our own law, and other systems of law, there are numberless present rights, and numberless contingent or uncertain rights, which are not vested or contingent remainders, and have little or no resemblance to them.<br />
<br />
In the ease, for example, of a specific legacy given to an infant absolutely, but with a direction that the payment shall be deferred till the infant come of age, the test can have no application. There, the right of the legatee is a present right, and cannot take effect in possession till he come of age. But there can be no question about its present capacity of taking effect in possession. For there is no preceding interest on which it is expectant, and on the determination of which the enjoyment is to commence. The absolute ownership is now in the infant, and yet the infant cannot enjoy until the arrival of the period fixed by the will.<br />
<br />
The only marks of a contingent right which I have been able to discover are those which I have endeavoured to explain.<br />
<br />
1st. Although the facts constituting the title have all of them happened, (or, more briefly, although the title be consummate,) the right is a contingent or uncertain right, if it be determined to a party who may never come into existence.<br />
<br />
2ndly. Although that party be in existence, the right nevertheless is a contingent right, if the title be not consummate, and may never be completed.<br />
<br />
And here I would remark, that a contingent right, or a chance or a possibility of a right, may be transmissible to the heirs or representatives of the party to whom the right is determined. It may, indeed, happen, that the existence of the party, at a given time, may be the very contingency, or parcel of the very contingency, on which the right is to arise. And, on that supposition, if the party die before the given time, the contingent right can never vest, and there is no possibility transmissible to his representatives.<br />
<br />
For example: If land be given to A for life, and in case B survive A, to B and his heirs, if B die before A, the contingent right can never vest.<br />
<br />
But if the existence of the party at a given time be not parcel of the contingency, the contingent right (if it be calculated to endure beyond the party's life,) may devolve to his representatives.<br />
<br />
For example: If land be given to A for life, and, in case C survive A, to B and bis heirs, B has a contingent right transmissible to his representatives. The contingency on which the right is to arise is the death of A, leaving C surviving. And if B die before the contingency happens, the chance or possibility still exists, and may pass from B himself to the heirs or representatives of B.<br />
<br />
[Query. Whether jus in rem may be future without being contingent?<br />
In all these cases there seems to be a present or perfectly acquired right, of which the enjoyment is postponed to a future but certain period.]<br />
<br />
There are two senses wherein a right may be styled contingent: one of which senses is large and vague; the other, more strict and definite.<br />
<br />
In the large and vague sense, any right to which any body (now in being or hereafter to be,) may any how become entitled, is a contingent right. It is possible, for example, that I or you, or any body now in being or hereafter to be, may become owner or proprietor of A's house, or, more generally still, of any house whatever.<br />
<br />
But when we oppose a contingent right to a present or vetted right, we commonly mean by a "contingent right" a specifically determined right: and we commonly mean moreover that the right is inchoate, although the right is not consummate, and although its consummation be uncertain. A contingent right is a determinate right of which the title is inchoate, or an indeterminate right of which the title is not even inchoate, (unless in so far as capacity to take be a commencement.)<br />
<br />
The contingent rights which are subjects of legal rules, are those which are inchoate: ¦*. e. the title to which has begun, although (being a complex title, or consisting of several incidents) it is not consummate, and never may be: i e. some of the incidents necessary to complete it, have not happened.<br />
<br />
The right also must be determinate: i. e. the inchoate title must not. consist in a mere general capacity to take rights, or rights of a given class: e. g. The right of the presumptive or apparent heir is a contingent right determinate and inchoate.<br />
<br />
The mere capacity of taking an estate in fee simple is not a title to any determinate right.<br />
<br />
The mere capacity of husband is also distinguishable from that of heir. It is a capacity to take his share of any rights to which the wife may become entitled. But that of the heir is an inchoate and determinate right i i. e. the party stands in a relation to the deceased which forms part of the title, and the right itself is a right to a given res singula or to a given universitas.<br />
<br />
Sometimes, however, we speak of contingent rights in the larger and vaguer meaning. For example: The contingent rights embraced by the spes successionis, are any contingent rights to which the heir will become entitled on the death of the predecessor. So, again, a mortgage of all a man's future rights.<br />
<br />
In considering the distinction between present and contingent rights, I have considered it as abstracted from all the peculiarities of the English Law. To expound the distinction as concrete in those peculiarities, with vested remainders, contingent remainders, executory devises, conditional limitations, etc., and all these implicated with distinctions between law and equity, and real and permanent property, would take volumes.<br />
<br />
These spring mainly from seisin.<br />
<br />
In treating of vested and contingent rights, I have confined my remarks to jura in rem, or to rights which avail against the world at large. But distinctions resembling those to which I have just adverted also obtain between rights of the opposite class.<br />
<br />
Every jus in personam, or which avails exclusively against a person or persons determinate, is a right to an act or forbearance. But the act to be done, or the forbearance to be observed, may be to be done, or to be observed, either certainly, or on the happening of a given contingency. If it be to be done certainly, the right may lie deemed vested. If it be to be done on a condition, or on the happening of a contingency, the right may be deemed contingent.<br />
<br />
And if it be to he done certainly, it may be to be done presently, (or on the demand of the obligee,) or it may be to be done at a determinate future time. In the first of which cases, the right may be deemed a present right, coupled with a right to immediate fulfilment. And in the last of which cases, the right may be deemed a present right, of which the fulfilment is presently postponed.<br />
<br />
A right (vested or contingent), which is liable to end before the lapse of its possible duration.<br />
<br />
First, as to vested rights.<br />
(a. 1.) Where the right is a right of limited and defined possible duration, it may be made liable to end, on happening of a given contingent event, before the lapse of the defined period for which it is calculated to endure. (See Blackstone, vol. ii. p. 143.)<br />
(a. 2.) Where the right is a right of limited but indefinite possible duration, it may be made to end, on happening of a given contingent event, before happening of certain facts up to which it is calculated to endure. (See Black-stone, vol. ii. p. 121.)<br />
(b.) Where the right is a right of unlimited duration, it also may be made to end, on the happening of a contingent event, before the lapse of its possible duration : t. e. to end on another given contingency before the contingent failure of the line of successors to whom it is capable of devolving, etc (See Blackstone, vol. ii. p. 154.)<br />
<br />
Secondly, as to contingent rights.<br />
<br />
What has been said of a vested, is applicable (with a few modifications,) to a contingent right. For it may be made liable to end {if tt should ever vest,) on a given contingency before the lapse of its possible duration.<br />
<br />
Notes.<br />
<br />
The fidei-commissa and trust-substitutions of Roman Lawyers are placed with inheritances : for, with them, contingent interests were created by will. Even, therefore, where the subject was a res singula, it was considered after testaments.<br />
<br />
Contingent interests not allowable by strict Roman Law.<br />
<br />
Dispositions suspending vesting, and preventing alienation.<br />
<br />
In the case of usus, etc., there was no remainder over to a third party (still leas an uncertain party on an uncertain event,) but a mere reversion in the grantor descendible to his heirs.<br />
(Gaius, Lib. ii.; from § 179 to § 274.)<br />
Conditional fees and estates tail to be ranked with substitutions, fidei-commissa, etc. To rank them with inheritances, (i.e. with rights which devolve agreeably to law in default of a disposition,) leads to nothing but confusion. Such an inheritance or fee ought to be considered as a aeries of life-interests. The language resembles that of the Roman Fidei-commissa. (See Mackeldey.)<br />
<br />
Various means of limiting inalienability: In the Roman Law, directly : In the English, by fictions. (Blackstone, vol. ii. p. 110.)<br />
<br />
<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-29521839512716211362015-05-17T08:01:00.001+01:002015-05-17T08:01:52.002+01:00Peculium In Roman Law<div style="text-align: justify;">
Peculium means any property or asset assigned by the father of the family to a family member or a slave. The father of the family maintains the property right by the beneficiary will have the disposition right.</div>
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<div style="text-align: justify;">
Let us note that, in Roman Law, onlay father of a family (Pater Familias) had the capacity to own and gain properties. Any property/asset held or gained by the family members or slaves would be the father's property. Accordingly, members and slaves could have anything to dispose only by provision of peculium.</div>
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<div style="text-align: justify;">
Let us also note that this term is the origin of today's English phrase "peculiar to". Where a property is provided as a peculium to someone, that property is 'peculiar to' him or her as it was assigned exclusively by the father.</div>
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<div class="separator" style="clear: both; text-align: center;">
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<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-66331315125997355222015-02-21T17:59:00.000+00:002015-02-21T17:59:12.323+00:00Difference Between Accomplice And Accessory<div style="text-align: justify;">
Accomplice is a person that helps the principal physically, whereas an accessory may be and usually refers to him, who is absent in the crime scene and assists the principal mentally.</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7fmbEO_X0TJYa5etEqlg5D6LZo-V8DVZ6iA76uNz7o1J4_DFRTgCLGeKaVMbEYrl_bsXUZx-Jtayn5Ul55tyFuqK19JU0Nyf3WJVXU-mAgH08PF2IxO_0Te2yJ1e23eYzYtJ1D0i2VJl6/s1600/accomplice.jpg" imageanchor="1"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7fmbEO_X0TJYa5etEqlg5D6LZo-V8DVZ6iA76uNz7o1J4_DFRTgCLGeKaVMbEYrl_bsXUZx-Jtayn5Ul55tyFuqK19JU0Nyf3WJVXU-mAgH08PF2IxO_0Te2yJ1e23eYzYtJ1D0i2VJl6/s320/accomplice.jpg" /></a>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-47443894122981082722015-02-01T13:54:00.001+00:002015-02-01T14:06:15.760+00:00Enforcement Implementation Difference<div style="text-align: justify;">
What is the difference between enforcement and implementation?</div>
<br />
Enforcement is a use of force to actualize what is written in laws. It is similar to execution; only less challenging. An execution is enforcement where it faces a possible private opposition.<br />
<br />
Whereas, implementation is making real what was already designed.<br />
<br />
Therefore, enforcement, and in more general sence execution, is a practice of the legislation, whereas implementation is a practice of a completed design.<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi2YfL8uZhjoEI2lsE8egybAnGc1lpsNpkV5At-F7zbJgm3b4I5PiMd-Ysrk_dGsysifAwVE79O9siYrH8VzHb-Ce2RSlOTz3-_PQcS1DAR8zjYK9ZlSNq-r5GdptVB3mHzO0gHHZIxXVNn/s1600/enforcement.jpg" imageanchor="1"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi2YfL8uZhjoEI2lsE8egybAnGc1lpsNpkV5At-F7zbJgm3b4I5PiMd-Ysrk_dGsysifAwVE79O9siYrH8VzHb-Ce2RSlOTz3-_PQcS1DAR8zjYK9ZlSNq-r5GdptVB3mHzO0gHHZIxXVNn/s320/enforcement.jpg" /></a><br />
<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-3386055469801751532014-12-19T18:37:00.001+00:002019-03-26T06:19:11.742+00:00"Socrates<br />
<br />
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<br />
<br />
<br />
<br />
<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-70822730292633239922014-12-01T18:00:00.001+00:002014-12-02T08:26:44.344+00:00Debit Credit Cards<div style="text-align: justify;">
<br />
The difference between debit cards and credit cards is:</div>
<br />
<a name='more'></a>Debit cards allow the holder to draw the money already deposited by the account holder. When the account holder pays money into her or his account, that amount becomes payable by the bank and receivable by the customer. So, it becomes as debit on the bank's side. With a debit card, the holder withdraws the 'debit' of the bank payable to the customer.<br />
<br />
Whereas, credit cards allow the holder to lend money from the bank. The money used by the customer is provided from the bank's own funds. As the amount used by the customer becomes payable by the customer and receivable by the bank, it becomes a credit on the bank's side. So; with a credit card, the holder withdraws the 'credit' lent by the bank, and to be owed by the customer.<br />
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<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi0ofs-rLG7aN3fdBR2ZxA2sT6esIFfs4EgyLXrPBIzM8c5ANkYNFvs-08pA0GCZDVFCYwbbTxEYfyOZ_6iXrVQMuOCIdzLJsmgXMJ8Nnti1RMZb4FDiNRIlbgrfnAcwKO0v4rdgGJ5SFCH/s1600/Debit-Credit-cards.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi0ofs-rLG7aN3fdBR2ZxA2sT6esIFfs4EgyLXrPBIzM8c5ANkYNFvs-08pA0GCZDVFCYwbbTxEYfyOZ_6iXrVQMuOCIdzLJsmgXMJ8Nnti1RMZb4FDiNRIlbgrfnAcwKO0v4rdgGJ5SFCH/s200/Debit-Credit-cards.jpg" /></a></div>
<br />
<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-11934512384865350142014-07-31T05:16:00.003+01:002014-07-31T05:16:48.360+01:00Legal Definition-Consent Decree<div style="text-align: justify;">
Consent decree means supervision of a police department by a federal authority upon the police department's own consent.</div>
<br />
<blockquote>
Pursuant to the terms of a federal consent decree in effect for 25 years, NYCHA had been prohibited from commencing a summary eviction proceeding for non-desirability (including drug related activity) without first affording the tenant an administrative hearing (Escalera Decree) (Escalera v NYCHA, 425 F2d 853 [2nd Cir 1970](No. 67 Civ 4307[WRM], SD NY, March 23, 1971)).</blockquote>
See <a href="http://law.justia.com/cases/new-york/other-courts/2010/2010-51475.html">New York City Hous. Auth. v Williams</a><br />
<br />
<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-68228799698449481062014-07-31T05:05:00.004+01:002014-07-31T05:05:57.546+01:00Brady Violation<div style="text-align: justify;">
Brady violation means public attorney's failure to provide the defendant side with material evidence in favor of the defendant. </div>
<br />
The obligation of the public attorney was set under <a href="http://www.buray.net/2013/07/brady-vs-state-of-maryland.html">Brady vs. State of Maryland</a><br />
<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-61134941255294794972014-07-31T05:02:00.001+01:002019-03-26T06:19:12.903+00:00Brady vs. State of Maryland<br />
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<br />
<br />
<br />
<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-47526606909948304092014-07-31T04:38:00.001+01:002014-07-31T04:38:06.513+01:00Tunnel Vision Legal Definition<div style="text-align: justify;">
Tunnel vision is a type of misconduct by police and public attorney, where they are so strictly dependant on one theory for analysing the crime that they find a way to interpret every information and documentation about the crime in favor of that theory. This vision fails chacking validity of the explanations suggested other than the fixed theory.</div>
<br />
<blockquote>
Finally, the evaluations said his attitude and judgment were slipping due to "tunnel vision" which led him to desire only to ride his motorcycle. McManigal's supervisor said if his attitude did not change, a transfer would be recommended.</blockquote>
See <a href="http://law.justia.com/cases/california/calapp3d/166/975.html">McManigal v. City of Seal Beach (1985)</a><br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhE07Fz_UhJn6hvGdUCs0-9pyLU1mxQI1UECxc-k8LxzyHdAK2OkWU65XZyzBT1CsvaepEuJZwzUdZ46Hqd7Yg1hyBTe39A4GDi0gjO3QUt3Tur3j7GaVlfCBXeLNeEJjyoPON5MpEa2NlW/s1600/tunnel-vision.jpg" imageanchor="1"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhE07Fz_UhJn6hvGdUCs0-9pyLU1mxQI1UECxc-k8LxzyHdAK2OkWU65XZyzBT1CsvaepEuJZwzUdZ46Hqd7Yg1hyBTe39A4GDi0gjO3QUt3Tur3j7GaVlfCBXeLNeEJjyoPON5MpEa2NlW/s1600/tunnel-vision.jpg" /></a><br />
<br />
<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-11640578503176367572014-07-25T13:54:00.001+01:002014-07-26T07:07:40.006+01:00What Does Dry-Labbing Mean?<div style="text-align: justify;">
Dry-labbing or drylabbing means false testimony given by experts on their forensic tests, which were never performed actually.</div>
<br />
It is a fictional result provided in lieu of a scientific evidence.<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhjOUdn1mTlA-fLA1C_TrIs7v8kYDyJro1m1TomeOvHrXBtfxfLpG5B6RhOmLVochxIh9rP4Vd2MgBI_Hny3efJj0eVO9KYyiDbPkfTwyu_XQI2SF-tHgXnZxaBnyR89u_DLmR1bq-Q5jCl/s1600/dry-labbing.jpg" imageanchor="1"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhjOUdn1mTlA-fLA1C_TrIs7v8kYDyJro1m1TomeOvHrXBtfxfLpG5B6RhOmLVochxIh9rP4Vd2MgBI_Hny3efJj0eVO9KYyiDbPkfTwyu_XQI2SF-tHgXnZxaBnyR89u_DLmR1bq-Q5jCl/s1600/dry-labbing.jpg" /></a><br />
<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-83624464166515290842014-07-25T11:18:00.001+01:002014-07-26T07:08:21.668+01:00What is the Difference Between Admission and Confession<div style="text-align: justify;">
In every confession, there is an admission: "I did it".</div>
<br />
However, a confession contains more than an admission. It may further give details about the crime, or suggest a defence about the crime.<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgScwl9nmldthJ7Ck-gITkz7hli9xN3S_5EfAUf4NMWWQqyqE20GfttJbjyCJA-Lvs7LKFGP6e_46w9Yt6RUeAAcPQEOpvTImO0SxNNWv_kDmHuUkivskHI6EKq2YErqfJqjbj9UMcaC9t8/s1600/confession.jpg" imageanchor="1"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgScwl9nmldthJ7Ck-gITkz7hli9xN3S_5EfAUf4NMWWQqyqE20GfttJbjyCJA-Lvs7LKFGP6e_46w9Yt6RUeAAcPQEOpvTImO0SxNNWv_kDmHuUkivskHI6EKq2YErqfJqjbj9UMcaC9t8/s1600/confession.jpg" /></a><br />
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<br />
<div style="text-align: center;">
<a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a> <br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a> <br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a> <br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>
Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.comtag:blogger.com,1999:blog-6198338267529248687.post-38227797550151559662014-07-23T11:38:00.001+01:002014-07-23T12:10:21.812+01:00Legal Term For Withholding InformationLegal term for withholding information is <b>concealment of information</b> or <b>suppression of information</b>.<br />
<br />
Concealment of information more refers to a physical hiding of information, whereas suppression of information more refers to a mental way of avoiding a disclosure.<br />
<br />
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgF-pgNQa30YkfE26D81wxEFAcmn7E7iIiAVHq6EYMDSWtQusLd6xW9bGw2gpyYDOv7UN8AtEEeHC1yvpe96dDoiQL2fNLbABbwGcKR6R5wL-yN-8PoP1ZIDV4pfNl_AtMDemKiSx2XU-VT/s1600/withholding-information.jpg" imageanchor="1"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgF-pgNQa30YkfE26D81wxEFAcmn7E7iIiAVHq6EYMDSWtQusLd6xW9bGw2gpyYDOv7UN8AtEEeHC1yvpe96dDoiQL2fNLbABbwGcKR6R5wL-yN-8PoP1ZIDV4pfNl_AtMDemKiSx2XU-VT/s1600/withholding-information.jpg" /></a><br />
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<br />
<br />
<br />
<br />
<br />
<div style="text-align: center;"><a href="http://www.buray.net/2014/07/legal-term-for-blackmail.html">Legal Term For Blackmail</a><br />
<a href="http://www.buray.net/2014/07/legal-term-for-lying.html">Legal Term For Lying</a><br />
<a href="http://www.buray.net/2014/06/comparison-between-civil-law-and-common.html">Comparison Between Civil Law And Common Law</a><br />
<a href="http://www.buray.net/2014/07/what-does-prosecutorial-misconduct-mean.html">What Does Prosecutorial Misconduct Mean</a></div>Bvrayhttp://www.blogger.com/profile/16977954327870900993noreply@blogger.com