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gets only what his assignor has at 'the time of the assignment, whether the qualification of the assignor's right is legal or equitable, patent or latent, is one thing; but to say that an assignee shall have only what his assignor shall choose to leave him in the future by making or refraining from making other assignments is totally destructive of the value of assignments if the assignee can do nothing to protect himself. This is the situation in the case in question, if total assignments give the assignee a legal title to the claim, for notice to the debtor will of course afford no protection against the kind of fraud here in question. Partial assignments I believe to be more numerous than total assignments of intangible choses in action, and of equal, if not greater, commercial importance.
It may be said that the difficulty could be avoided by holding that the partial assignee also had a legal right. It might be sufficient answer to this to say that the question of legal ownership of the total assignee would then best be deferred until the courts shall recognize that the partial assignee as well as the total assignee has a legal right; but there are objections to that solution even if it were possible. To hold that the partial assignee is the legal owner of a part of the claim as a separate entity is to subject the debtor to an indefinite multiplication of claims against him owned by individual creditors. The courts rightly do not seem prepared to take such a step. To hold that the partial assignee becomes a joint-owner with the assignor, as has been suggested in a recent Texas decision, 26 sounds plausible, but then as each one of joint owners of a contract right has the power of releasing or discharging the whole joint claim by receiving payment or otherwise, the partial assignee and the assignor have each a power very inconvenient for the other. This is not perhaps a necessary rule, but it happens to be the rule of the common law.
On the whole, therefore, it seems to me that the system worked out by the courts during several centuries, coupled with a statutory change in procedure allowing the assignee to sue in his own name, produces the most desirable results and best fits in place with other rules of our legal system.
Samuel Williston. HARVARD LAW SCHOOL.
26 Hughes-Buie Co. v. Mendoza, 156 S. W. 328 (1913) (Tex. Civ. App.).
ENGLISH CIVIL LAW
II MAN is a creature of impulses and tendencies. Whether the im
pulses produce the tendencies, or vice versa, whether they areunrelated, whether an impulse is merely a rapid tendency, are questions to be discussed by psychologists and physiologists. The jurist is, however, profoundly concerned with these primordial qualities of human nature; and it is a cardinal weakness of the utilitarian or Benthamite school of reformers, that they assume the conduct of the average man to be guided mainly by reason, whereas it is, in fact, mainly guided by the primitive impulses and tendencies to which allusion has been made. Reason is doubtless the supreme quality. Unfortunately there is, as Napoleon remarked of the British infantry, 'very little of it' in the conduct of the average citizen. And, if this be so, even at the present day, still less did reason govern the conduct of humanity in its earlier stages of development, when the foundations of law were laid.
Another element in the position is the fact that almost all primitive instincts are, in themselves, neither bad nor good, but neutral. Their virtue or vice depends entirely on the uses to which they are put.? Acquisitiveness, curiosity, imitativeness, concupiscence, credulity, are obvious examples of this truth; and even fear and jealousy, unlovely as they seem to the observer, have undoubtedly had, in the history of the race, both individual and social value.
Neither can it be denied, that of all the instincts of mankind, the egoistic or self-regarding are the most ancient and deep-seated. Even if we do not go so far as to regard all altruistic or social tendencies as derived originally from the egoistic,? we must unquestionably admit their relative inferiority in point of strength and age,
1 Perhaps the best proof of this truth is to be found in the fact that most gestures of affection are fictitious gestures of hostility, e. 8., the kiss is a sham bite, the friendly nudge in the ribs a sham dagger thrust.
* E. 8., from the maternal instinct, which is, probably, itself derived from the fact that the offspring once formed, physically, a part of the mother.
for the simple reason that primitive instincts are based on physical feeling, and that, though our researches into the history of mankind go pretty far back, we have discovered no trace of an epoch when individuals were clustered together in physically connected groups capable of identical physical feelings. That a primitive group, suddenly attacked by a common calamity, e. g., a famine or an avalanche, might develop a feeling of sympathy from common misfortune, is not to be denied; though the evidence would seem to show that such an event was at least as likely to intensify the egoistic instincts. But even that would be long subsequent to the development of the latter.
Now if there is one thing clearer than another about law, in the sense of the jurist, it is, that it is a social force. Not only does it rest, ultimately, on the approval of the more influential members of the community, but it is manifestly intended to secure objects which those members believe to be desirable in the common interest. At least this is so in every system of law which does not profess to rest simply and solely upon the manus militaris; and the latter kind of system is far rarer than is commonly supposed. It is obvious, therefore, that the first purpose, at any rate of every indigenous system of law, is to repress such developments of egoistic instincts as manifestly run counter to common interests, and to encourage those which foster and develop such interests.
Manifestly, that egoistic instinct which is most dangerous to common interests, because clearly, if not checked, destructive of the community, is the unrestrained exercise of predatory desires. In so far as these are directed against the means of sustenance, they are bad enough; but when they extend to the persons of the members of the community, they are absolutely fatal, because they inevitably provoke a revenge which, carried to its natural conclusion, means the extinction of the group. Doubtless the mere recognition of this fact marks a considerable stage in the development of intelligence; and we cannot be quite sure of the process which led primitive man to the conviction that the weakening of his community was a bad thing. All we know is, that the conviction was very early formed — so early, indeed, that it seems to be present in
3 The difficulties involved in maintaining such a system, even by overwhelming military force, are well exemplified by the indignities suffered by the Prussian military administration in Belgium during the war.
some of the higher animals, such as orang-outangs and peccaries, who will deliberately avenge the death of a comrade.
Note, however, that the primitive group had no executive machinery for putting down violence, even if we allow that it might be roused occasionally to common action by some specially atrocious deed which manifestly struck at the life of the community, e.g., betrayal to a hostile group or insult to the tribal gods. This is probably the origin of that popular process known as the “hue and cry', which later developments have refined into the posse comitatus of the modern sheriff. For the most part, however, the violence merely directed against individuals is left to the homeopathic treatment of the blood feud — how established, we know not, but quite evidently based on a sound knowledge of human nature. Why the infliction of suffering should be an assuagement of suffering undergone by the agent, is one of the mysteries of human nature. The fact that it is so, in unrefined human nature, can hardly be questioned by students of social history.”
From the blood feud springs, by palpable filiation, the litigatory process, i.e., the older type of civil action, in which the complainant tries to make good his claim against the defendant according to the rules of the game, the court (whether consisting of village elders or a royal official) merely standing by to see fair play. The prize of victory is older than the civilized lawsuit, and has persisted into that stage. It is the wergild or blood-fine, now rationalized (somewhat imperfectly) into 'damages', and supposed to be based on the material loss suffered by the plaintiff; but the very confusion between 'damages' and 'damage' will suggest that there are still traces of the old idea of consoling the plaintiff by the suffering of the defendant. Later, of course, comes the inquisition process, in which the King or State, now firmly established, conducts an investigation on his or its own account, and, according to his or its views of the wrongdoer's conduct, awards punishment for the good of the latter's soul or as a warning to others. At first this type of
* A reference to this venerable institution is clearly contained in that very modern statute, the Sheriffs Act, 1887 (s. 8. The 'cry of the country').
5 The references to the blood feud in early codes are numerous. One of the best known is that of the Twelve Tables ( si membrum rupit, ni cum eo pacit, talio esto').
6 The intermediate stage is the 'penal action,' well known in classical Roman law, and still faintly surviving in England. 'Vindictive damages' are, perhaps, also a survival of the same ideal.
process is confined to acts which threaten the safety of the community - i. e., it is an alternative of the rough communal action above described. But later on, as in the English 'equity' jurisdiction, it may be placed at the disposal of the private litigant.
One of the most curious facts of English legal history is that, parallel with this application of the inquisition process to civil actions, there was a profound reaction, due, of course, largely to the jury system, toward the litigatory type of process in the original domain of the inquisition - viz., criminal prosecutions. Of the gain to humanity of this reaction, there can be no question. Bloodthirsty as was the English criminal law in the eighteenth century, its administration was rose water compared with the unspeakable horrors of contemporary Continental systems. It can hardly be doubted that this modification of the inquisitionary character of criminal process also facilitated greatly the supersession of the old 'appeal of felony' by the more civilized procedure of indictment;? and it would be interesting to compare in detail the corresponding movement, before alluded to, in Continental criminal systems, which admitted the partie civile to a formal partnership with the State in the conduct of prosecutions. At first sight it looks as though the root idea in both policies were the same, viz., the enlisting of the primitive desire of individual vengeance on the side of the common interest; but the difference in the methods is not without significance.
And if we look a little deeper into the characteristics of English law, we shall probably realize that the very success of the executive government in England in repressing disorder and ‘self-help' seems to have arrested the development of what may be called 'community action' through law. For, whilst the long agony of the wars of religion on the Continent was at last ended only by that deification of the State which produced the absolutism of the eighteenth century, the comparatively mild experiences of England in
? Of course there were other and more specific inducements - e. 8., the provision of the statute of 1529, which enabled the prosecutor in robbery or larceny to recover his goods after conviction of the thief (SHORT HISTORY OF ENGLISH Law, pp. 156–57).
30 Harv. L. Rev. 9. • Perhaps, as v. Bar appears to hint, the ‘reception' of the Roman law may have had something to do with the change. But as v. Bar himself points out, the Roman conception was itself due to the bellicose history of the Roman City State (HISTORY OF CONTINENTAL CRIMINAL LAW (Am. translation), pp. 17, 203).