FIRST BOOK OF JURISPRUDENCE r / A FIKST BOOK OF JURISPRUDENCE FOR STUDENTS OF THE COMMON LAW Sie FREDERICK POLLOCK, Bart. BARRISTER-AT-LAW M.A., HON. LL.D. EDIN., DUBLIN AND HARVARD CORPUS CHRISTI PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFO LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE Hon&on MACMILLAN AND CO., Ltd. NEW YORK: THE MACMILLAN CO. 1896 All rights reserved PREFACE This book is not intended to lay out a general system of the philosophy of law, nor to give a classified view of the whole contents of any legal system, and it does not profess to compete with the many works which have aimed at one or both of those objects. It is addressed to readers who have laid the foundation of a liberal education and are beginning the special study of law. Such a reader finds, in the new literature he has to master, a number of leading conceptions and distinctions which are assumed to be familiar, and are so to lawyers, but which, for that very reason, are not often expressly stated, still less often discussed, and hardly ever explained. He has not only to discover for himself, often with much bewilder- ment, the actual contents of legal terms, but to realise the legal point of view and the legal habit of mind. Law seems to the layman, at first sight, 389697 vi FIRST BOOK OF JURISPRUDENCE to make much of trifles and to disregard greater matters. Again, some speculative problems are capable of giving much trouble in the actual practice and administration of the law, while others are seldom or never heard of in court; and it is hard for the layman or the novice to distinguish the two kinds. In this as in other sciences every one must make his way through the stage of confusion and illusion in his own fashion. But, though it is his own work which no one else can do for him, it is possible for those who have passed beyond that adventure to be ready with a helping hand and a warning voice. In the first part of this book I have tried to set forth, in language intelligible to scholars who are not yet lawyers, so much of the general ideas underlying legal discussions as appeared needful for the removal of the most pressing difficulties. Not much will be found about constitutional or criminal law; not because I underrate their actual importance, but because they do not, as a rule, so much require this kind of explanation, and their exceptional problems, when they do occur, are too hard for novices, and are best left for a riper stage. Quotation and criticism of other modern writers' opinions have been, with rare exceptions, purposely PREFACE vii avoided as useless and distracting to those for whom I mainly write. Any detailed acknowledg- ment of my obligations will therefore not be expected. Among the authors of past generations I owe most, so far as I can judge, to Savigny; among recent and living ones to Maine, Ihering, and my friend Mr. Justice Holmes of Massachusetts. Learned readers and advanced students will easily see that the philosophy of the English or "analytical''' school is not mine; nevertheless I have learned much from Hobbes, and hold acquaintance with his work at first hand indispensable for all English- speaking men who give any serious consideration to the theoretical part of either politics or law. It may be that I love Hobbes a little too well to be perfectly just to his successors, who, to my thinking, have often got more praise than they deserved for repeating Hobbes's ideas in clumsier and really less exact words. But, as I am not undertaking a critical estimate, this is but a matter of personal taste, and of no importance to the reader. While I have endeavoured to be as clear as possible, I have not attempted to make funda- mental and difficult problems look easy. The cheap facility that comes of gliding over hard vm FIRST BOOK OF JURISPRUDENCE places can only be found a clear bargain in the end. Sometimes I have allowed myself to devote a few sentences or even a paragraph to readers who have to some extent mastered the language and methods of philosophy. This, I hope, will not be unwelcome to such as have taken honour degrees in classics, especially in the Oxford School of Li terae Humaniores. The second part of the book aims at an end not really dissimilar in kind, but it is more practical and more exclusively addressed to students of the Common Law, the system according to which justice is administered in almost every part of the English-speaking world except Scotland and (if that be a real exception) Louisiana. Like the Koman law, that system is embodied in a special and technical literature governed by its own authoritative conventions, accessible only through its own apparatus of reference, and available for any practical purpose only on condition of under- standing its peculiar methods. The use of law- books and the appreciation of legal authorities can be fully learned only by assiduous practice; but here, again, it has long seemed to me that some- thing can be done to lighten the first steps of the beginner, and this is what I have tried to do. No PREFACE ix practical art can really be taught; one man can only help another to learn; but it is common experience that such help will often save a great deal of trouble. Certainly no man ever learned to shoot by being lectured on the construction of a rifle, and yet such lectures are a regular part of musketry instruction. So far as I know, the experiment has never been made, in the case in hand, for the same purpose or in any very similar manner, though different parts of the subject have been touched upon by several writers, both English and American, on legal studies and literature, and notably by Kent. Possibly a connected account of the sources and authorities of English law, as they have come to be in modern practice, may be of interest to some of the Continental scholars, especi- ally Frenchmen, who of late years have brought admirable industry and intelligence to bear on our methods of conducting both political and judicial affairs. But I have written, in the first place, for our own learners of the Common Law on both sides of the ocean, and my work stands to be judged by their proof in using it. If they find it useful I shall be well content, even more content than if I should perchance convince a mature philosopher or econo- mist that the science of law has some right to exist. x FIRST BOOK OF JURISPRUDENCE It will be seen that the two parts of the book are to some extent independent of one another; and any reader who so chooses can, without much inconvenience, disregard the logical order of gener- ality and take the second part first. However that may be, the combination of the two in one volume, and the preference of English examples and illustra- tions in the first part, are intended as a protest against the habit of regarding "jurisprudence" as something associated with a little knowledge of the laws of every country but one's own. Some chapters and parts of chapters have already been printed in the Harvard Law Review, for whose hospitality I hereby return my best thanks, and others in the Law Quarterly Review. F. P. CONTENTS PART I SOME GENERAL LEGAL NOTIONS CHAPTER I The Nature and Meaning of Law Difficulties of Definition Rules of Civic Conduct . Legal Profession not necessary Custom Moral and Natural Law Law of Nations Extended Senses of "Law" . Sanctions of Law . Law as "Will of the State" PAGE 3 7 8 10 12 13 16 21 26 CHAPTER II Justice according to Law Conditions necessary for Existence of Law Justice Order as Fundamental Principle . 28 30 32 FIRST BOOK OF JURISPRUDENCE Singular Sovereign Acts 33 Normal Marks of Law -.—Generality . . . .35 Equality . . . .36 Certainty .... 39 Scientific Nature of Law 44 Relation of Law to Morals 46 Legal Responsibility without Moral Fault . . 50 Development of Law necessarily Artificial . . 52 CHAPTEE III The Subject-Matter of Law Duties of Subjects 55 Duty, Positive and Negative 56 No Duty without Right 62 Can the State have Duties? 63 Wrong 67 Auxiliary Rules of Law 72 Rules of Evidence and Procedure .... 75 Substantive and Adjective Law 77 CHAPTEE IV Divisions of Law Formal Nature of Legal Classification . . .79 Impersonal and Personal Duties or Rights . . 80 Personal Duties dependent on Will of Parties or prescribed by Law 86, 87 Public and Private Law 90 The State as a Party 94 Law as regarding Persons, Things, Actions . . 97 Equality of Persons in Modern Law7 . . . .99 CONTENTS xiii CHAPTER V Persons PAGE Relation of Persons to Things 105 Natural and Artificial Persons 108 Disabilities of Natural Persons 113 Incapacities of Artificial Persons . . . .116 Corporate Duties and Rights 119 CHAPTEE VI Things, Events, and Acts Things as Subject-Matter of Rights and Duties . 121 Corporeal Things 122 Intangible Elements of Wealth 123 Things as the Potentiality of Rights . .129 Summary 130 Events and Acts 132 "Acts of the Law" and "Acts in the Law" . . 135 Intention and Motive 138 External Motive 143 Internal Motive 145 Act, Intention, and Consequences . . . 146, 147 Unintended Consequences 151 Duties as dependent on Acts, Intention and Consent 152 Liabilities independent of Intent . . . .155 Extent of Liability for Consequences . . .158 CHAPTEE VII Relation of Persons to Things: Possession and Ownership General Notion of Property 159 Title 163 Ownership 166 xiv FIRST BOOK OF JURISPRUDENCE PAGE Possession, Ownership, Real Rights 168 Possession as Evidence of Title .... 171, 173 Possession as Origin of Title .... 174 Possession historically prior to Ownership 176 Prescription and Limitation of Actions 178 Servitudes or Easements 180 Incorporeal exclusive Rights .... 187 Debts and other Obligations as Property . 191 CHAPTER VIII Claims of Persons on Persons: Relation OF Obligations to Property 193 Personal Obligations in Early and Modern Law 195 197 Contracts for Sale 199 Contracts for Payment 202 Transferable Contracts 203 Negotiable Instruments 205 Shares and Stocks 207 Contractual Rights as Property .... 210 Rights arising from Wrongful Acts . 212 PAET II LEGAL AUTHORITIES AND THEIR USE CHAPTER I The Express Forms of Law 21S 220 221 Interpretation 224 Case-Law and other Systems of Interpretation 227 CONTNETS xv CHAPTER II The Sources op English Law PAGE Written and Unwritten Law 233 Written: Original and Delegated Legislation . 233 Unwritten: Judicial and Non-Judicial Exposition . 235 Unwritten Law and Custom 238 The "Custom of the Realm" 240 Equity Jurisdiction in England 243 CHAPTER III Sovereignty in English Law The Supremacy of Parliament 246 Acts of Parliament not Judicially Disputable . 253 Sovereignty Distinguished from ultimate Political Power 255 CHAPTER IV Custom in English Law Custom: What it Means 263 Conditions of Validity 264 Ancient: Examples 266 Rules now merged in General Law 267 The Law Merchant 268 Local ........ 272 CHAPTER V Law Reports What are Reports 274 Origins in England: Bracton 277 The Year Books . . .278 xvi FIRST BOOK OF JURISPRUDENCE PAGE Anglo-French and its Degradation .... 281 Commencement of Modern Reporting .... 289 The Law Reports 293 English and American Case-Law: its estimated Bulk 294 'Use of Authorities 297 CHAPTER VI Case-Law and Precedents Authority of Decisions 299 Early Statements 301 Modern Usage: Co-ordinate Authority . . . 304 Manifest Error 306 Decisions confirmed by long Usage .... 306 Courts of Appeal 30S House of Lords: whether bound by its own Decisions 311 Judicial Committee of the Privy Council . . .317 Court for Crown Cases Reserved . . . .319 Supreme Court of the United States . . . .319 Decisions in other Common Law Jurisdictions . . 320 Nisi Prius Decisions 322 Roman and Foreign Law 325 CHAPTER VII Ancient and Modern Statutes Ancient Acts of Parliament: how Framed . . 329 Professional Jealousy of Statute Law . . .331 Degeneration of "Workmanship in Tudor Period . 332 Modern Reforms 335 Codification 341 PAET I SOME GENEEAL LEGAL NOTIONS CHAPTEE I THE NATURE AND MEANING OF LAW We find in all human sciences that those ideas Difficulty of the most which seem to be most simple are really the most general Tvi • • -i i'-leas i11 a^ difficult to grasp with certainty and express with sciences, accuracy. The clearest witness to this fact is borne by the oldest of the sciences, Geometry. Xo difficulty whatever is found in defining a parabola, or a circle, or a triangle. When we come to a straight line, still more when we speak of a line in general, we feel that it is not so easy to be satisfied. And if it occurs to us to ask the geometer what is the relation of his "length without breadth" to the sensible phenomena of space, matter, and motion, we shall find ourselves on the verge of problems which are still too deep for all the resources of mathematics and meta- physics together. A philologist will be ready 4 CHAP. FIRST BOOK OF JURISPRUDENCE No com- plete theory of law without complete theory of society: but ap- proximate generali- sation needful. enough with his answer if we question him on the Greek or the Slavonic verb. If we ask him what is a verb in general we may have to wait a little, and if we ask him to account for language itself we shall find ourselves again in a region of doubt and contention. It is not surprising, then, that the student approaching the science of law should find the formal definiteness of its ideas to vary inversely with their generality. No tolerably prepared candi- date in an English or American law school will hesitate to define an estate in fee simple: on the other hand, the greater have been a lawyer's opportunities of knowledge, and the more time he has given to the study of legal principles, the greater will be his hesitation in face of the apparently simple question, What is Law? In fact, a complete answer to this question is not possible unless and until we have a complete theory of the nature and functions of human society. Yet we cannot afford to wait for such a theory, for we are born into a social and political world from which we cannot escape. Paile, custom, and law beset us on every side. Even if at this or that point we go about to defy them we cannot ignore them; and the possible points of revolt, as reflection will show, are really but few even in I 5 THE NATURE AND MEANING OF LAW such kinds of life as are called lawless. We have to abide the law whether we will or no; and to abide it, on the whole, in obedience rather than in resistance. The French Revolution seemed, and in many respects was, a fundamental catastrophe: but it appeared, as things resumed a settled frame, that a large proportion of French institutions, traditions of policy, and positive laws too, had survived the Eevolution. If then we are to obey with under- standing, we must endeavour to understand so much as is needful for the purpose in hand, relying on the most approximately certain data that we can command. Man cannot live alone; the individual cannot Society cannot do without the family; and although family groups exist with can be conceived as independent and selr-sunicing, 0f social the family has from very early times been in like °lder' manner part of a larger society, whether it be a clan, a tribe, or a nation, with which it is bound up. No society can continue without some uniform practice and habits of life. Individual impulse has to be subordinated to this need; and this sub- ordination is a never-ending process. Hence there must be rule and constraint; and not the less so because, in one sense, the aims of the society and 6 FIRST BOOK OF JURISPRUDENCE of the individual coincide. On the whole and in the long run the interest of the individual is that society should exist. This is obviously true; but it is far from obviously true, indeed it seems not to be true, that his interest coincides always or everywhere with the interest of the society whereof he is a member, either as it really is or as it seems to be to those who conduct its affairs. Society comes into existence because its members could not live without it; but in continuing to exist it forthwith aims at an ideal, and that ideal is for the society and not for the individual member. The need for internal order is as constant as the need for external defence. No society can be stable in which either of these requirements substantially fails to be provided for; and internal order means a great deal more than the protection of individuals against wilful revolt or wanton lawlessness. Ex- press and definite forms of association are required for the fulfilment of these purposes and the main- tenance of a perpetual succession from one genera- tion of men living in society to another. When established, these forms embody and preserve the individual character of every self-maintaining community. In the sum of such forms, as express- ing and determining in each case the conditions of i THE NATURE AND MEANING OF LAW 7 collective life and well-being, we have the State. We say well-being with reference to the ideal and not with reference to the actual success attained. Some States have secured the well-being of their members much better than others, and the less successful ones may be called relatively bad, or in some cases even very bad. Still an inferior social organisation, though measurably worse than other and better forms, is immeasurably better than none. Further, if the State is to be permanent, wre The state needs rules need more than the existence of some kind of binding on • it citizens as social rule. We conceive many rules, the common such, and fundamental ones in matters of right and wrong, for example, to be binding on men simply as rational and social beings, without regard to any positive institutions. But this will not suffice for the State, which is an association for living together in definite ways. There must be rules binding the members of the State not merely as human or rational, but as members of that State; and this is not affected by the fact that to some extent, perhaps to a large extent, such rules include the matter of universal or more highly general duties which are of antecedent and independent force. Wherever any considerable degree of civil- isation has been reached, we find means appointed 8 FIRST BOOK OF JURISPRUDENCE chap. by public authority for declaring, administering, and enforcing rules of this kind. In dealing with these rules, as with all others, both the persons administering them and those whose interests are affected have to attend not only to the rules or principles themselves, but to the conditions under which they become applicable, the mode in which they are applied, and the consequences of their Such rules application. The sum of such rules as existing in make up . law. a given commonwealth, under whatever particular forms, is what in common speech we understand by law; the publicly appointed or recognised bodies which administer such rules are courts of justice. By justice, in this usage, we mean not only the doing of right, or the duty thereof, as between man and man, but the purpose and en- deavour of the State to cause right to be done. Law not In modern times and in civilised countries we rii^pro- find the work of courts of justice carried on by ^official, permanent officers; it is a special kind of work, and the knowledge of law is a special kind of knowledge which can be acquired only by a pro- fessional training. Law has developed an art and a science of its -own just as much as medicine. These conditions are now so usual that we might easily think them necessary; but they are not so i THE NATURE AND MEANING OF LAW 9 Law and legal justice can exist without a profession of judges or advocates; and where a legal profession exists, its divisions, and the relation of its branches to one another, have varied and still vary to a wide extent in highly civilised countries and down to our own times. Thus at Borne under the later Eepublic and the early Empire there was a class of highly skilled advocates, and under the Empire there was something like a Ministry of Justice, but for a long time there was nothing answering to the ordinary judicial establishments of modern States. In England it does not appear that before the Norman Conquest there was any distinct legal profession at all, and in the succeeding Anglo- Norman period there were professional or at any rate skilled judges, but no professional advocates. In Iceland, about the same time, there was a highly technical system of law1; courts were regularly held, and their constitution was the subject of minute rules; and there were generally two or three persons to be found who had the reputation of being more skilled in law than their neighbours. Yet with all this there were neither judges nor counsellors in our modern sense. It is the ad- 1 There is quite enough to support this statement apart from the elaborate pleadings set out in the present text of the Njals Saga, which are believed to be of much later introduction. 10 FIRST BOOK OF JURISPRUDENCE chap. ministration of justice with some sort of regularity that marks the existence of law, not the complete- ness of the rules administered, nor any official character of those who administer them. There has been much discussion about the relation of custom to law. Custom, except in distinctly technical applications which are really part of a developed legal system, seems to have no primary meaning beyond that of a rule or habit of action which is in fact used or observed (we may perhaps add, consciously used or observed) by some body or class of persons, or even by one person. It was the " custom " of Hamlet's father to sleep in his orchard of the afternoon. In the Morte d'Arthur we constantly read of a "custom" peculiar to this or that knight; for example, Sir Dinadan had such a custom that he loved every good knight, and Sir Galahalt, "the hault prince," had a custom that he would eat no fish. And it is still correct, though less common than it was, to use the word in this manner. Often custom is the usage of some class or body less extensive than the State, such as the inhabitants of a city, the members of a trade. But it can have a scope much wider than the limits of the State. The Church, which of course is not bounded by any State, and in the medieval view i THE NATURE AND MEANING OF LAW 11 could not be, had her own customs and refused to let any secular power pass judgment on their validity. No constant relation to law or judicial authority can be predicated of custom. It may or may not be treated as part of the law. Much law purports to be founded upon custom, and much custom has certainly become law. The extent to which this has happened, and the manner in which it has been brought about, are matters of history in the legal system which each particular State has developed or adopted. We shall have to return to this when we consider the sources and forms of the law of England. So far the word "custom" may be said to suggest the notion of potential or in- cipient legality. But on the other hand much custom is quite outside the usual sphere of law. Still the word has a certain ethical force tending to confine its use to those habits which the persons practising them recognise as in some way binding. Such are, to take a conspicuous example, customs of tribes and castes which have a religious character. "Customary" carries more weight, though it may be only a little more, than "usual1." In the weakest case we mean by custom a little more than 1 See Littre, s.v. Coutumc. Perhaps this tendency is more marked in French than in English. 12 FIRST BOOK OF JURISPRUDENCE vrav. habit, for one may have habits of an automatic or mechanical kind of which one is barely or not at all conscious. It is hardly needful to add that a great deal of law, at any rate of modern law, has not any visible relation to pre-existing custom. "Practice," in the modern usage of the legal profession, signifies a particular kind of custom, namely, that by which a court of justice regulates the course of its own proceedings. Moral law, We have used the word Law, so far, without natural law or law of any epithet, the sense in which we have used it being that which is commonly understood where nothing in the context requires a different one. But the word has other usages more or less analog- ous to the principal meaning. Moral law is the sum of the rules of conduct which we conceive to be binding on human beings, generally or with regard to the circumstances of a particular society, so far forth as they are capable of discerning between right and wrong; but it may also mean the rules to which the members of a particular society are actually expected, by the feelings and opinions prevalent in that society, to conform. Sometimes the distinction between actual and ideal rules of conduct is marked by speaking of moral rules, or of "positive morality," when we mean the i THE NATURE AND MEANING OF LAW 13 rules accepted in fact at given times and places, but of "natural law" or "law of nature" when we mean such rules as are universally accepted, or in our opinion ought so to be. Positive morality may be, and in many times and places is known to have been or still to be, contrary to universal morality or natural law. The supposed duty of a Hindu widow to burn herself with her husband's corpse is a striking example. The rules observed, or generally expected so to Law of nations. be, by the governments of civilised independent States in their dealings with one another and with one another's subjects are called the Law of Nations, or International Law. We are not called upon to consider here whether they are more nearly analog- ous to the law administered by courts of justice within a State, or to purely moral rules, or to those customs and observances in an imperfectly organised society which have not fully acquired the character of law, but are on the way to become law. This last mentioned opinion is my own; but I do not deem this a fit place for dwelling upon it. The whole matter is much disputed, and cannot be effectually discussed without assuming a good deal both of law and of the history of law to be known. Bodies of rule or custom existing in a limited 14 CHAP. FIRST BOOK OF JURISPRUDENCE Extended section of a community, and enforced by the use of u law "for opinion of that section within itself, are often particular social called laws: as when we speak of the laws of rules. honour, or the laws of etiquette. It is to he remembered that in medieval Europe the "law of arms" was for the persons affected by it a true and perfect law, having its courts, judges, and compulsory sentences. In modern times this use of the word seems to be avowedly metaphorical. Sometimes we hear of " the code of honour," which cannot be justified even as a metaphorical license: a code, as we shall see later, being essentially a collection of articulate and definite rules or state- ments, and generally purporting to proceed from a definite authority. "Law" iu In English we use the word Law in a con- the con- crete as crete sense to mean any particular rule, having an enacted . rule. the nature of law m the abstract sense, which is expressly prescribed by the supreme power in the State, or by some person or body having authority for that purpose, though not generally supreme. A law, in this sense, is the exercise of a creative or at least formative authority and discretion; the power that made it might conceivably have chosen to make it otherwise. The rule is such because a definite authority has made it so; it lay in the I 15 THE NATURE AND MEANING OF LAW lawgiver's hand what it should be. There is an element, at least, of origination. Application of existing principles, however carefully worked out, and however important it may be in its results, is not within the meaning. Therefore, although declara- tions of legal principles, or interpretations of express laws, by courts of justice may well be said to form part of the law, and so to be law in the abstract sense, we cannot say of any such declaration or interpretation that it is "a law." 1 When we are using the term in this concrete sense it is not only correct enough for ordinary political purposes, but correct without qualification, to say that "Laws are general rules made by the State for its sub- jects." 2 The plural "laws" is ambiguous, and the context must determine in which sense it is used. It may cover both meanings, as when we speak of "the laws of England" as including the whole body of English law, both what has been enacted by Parliament and what is derived from other sources. It is quite possible for the administration and development of "law" and the production of 1 When some part of the general law has been designated by the context, it ma.y afterwards be referred to as c c r of law. An exercise of merely capricious power, however great in relation to that which it acts upon, does not satisfy the general conception of law, whether it does or does not fit the words of any artificial definition. A despotic chief who paid no attention to anything but his own whim of the moment could hardly be said to administer justice even if he pro- fessed to decide the disputes of his subjects. The best ideal picture I know in literature of what might be called natural injustice, the mere wanton- ness of power, is exhibited in the ways of Setebos as conceived by Eobert Browning's Caliban} In the same master's Pippa Passes, the song of the ancient king who judged sitting in the sun gives a more pleasing though not a more perfect image of natural or rather patriarchal justice. Absence of defined rule, it must be remembered, is not the same thing as the negation of order. The patriarch may not do justice according to any consciously realised rule, and yet his decrees are felt to be just, and will go to the making of rules of justice for pos- terity. ] "As it likes me each time I do: so He." II 33 JUSTICE ACCORDING TO LAW It is true that even in highly civilised States we Relation of singular meet with occasional or singular acts of sovereign acts of sovereign power which are outside the regular course of power to justice and administration, and which nevertheless must be counted as laws. In form they do not differ from the ordinary acts of the law-making authority; and in substance they are laws in so far as they affect in some way the standing of individual citizens before the law, must be regarded and acted upon by the judges and other public servants of the State, and will at need be put in force by the executive. In some of these cases there is really nothing abnormal except the form of the transaction. What began with being a special exercise of supreme power for a special occasion has settled into a routine which, though in form legislative, is in substance administrative or judicial, or partly the one and partly the other. Such is the case in this country with the private Acts of Parliament by which railway and other companies are incorporated and have powers of compulsory purchase and the like conferred on them. So, before the establish- ment of the Divorce Court, the dissolution of marriages by a private Act of Parliament was a costly and cumbrous proceeding, but still of a judicial kind. In these and similar cases the form 34 FIRST BOOK OF JURISPRUDENCE chap. of legislation lias been rendered necessary by historical or constitutional accident. Sometimes, again, the purpose of these extraordinary legislative acts is to relieve innocent persons, and those who may have to derive titles to property from them, from the consequences of some venial failure to comply with the requirements of law. Marriages between British subjects have often been celebrated in good faith, but in fact without authority, by British Consuls and other official persons in remote parts of the world, and on the error being discovered Acts of Parliament have been passed to give validity to marriages so celebrated. Acts of indemnity have much the same nature, so far as they relate to the neglect or omission of requirements which have come to be regarded as merely formal. When the Test Acts were in force there was an annual Act of Indemnity for the relief of those public officers (being in fact the great majority) who had not performed and observed all the conditions which at one time had been supposed, and for a time possibly were, needful precautions for securing the Protestant succession to the throne. Lastly, that which in form is an act of legislation may be a more or less thinly disguised act of revolution, civil war, or reprisal against unsuccessful revolution. Acts of n JUSTICE ACCORDING TO LAW 35 attainder are the best English example in this kind.1 All these matters have their own historical and political interest: but we have nothing to learn from them about the normal contents and operation of legal institutions. The Eoman name of privilegia marks them off as standing outside the province of regular and ordinary law. Let us pass on, then, to consider what are the Normal marks of normal and necessary marks, in a civilised common- law: Generality. wealth, of justice administered according to law. They seem capable of being reduced to Generality, Equality, and Certainty. First, as to generality, the rule of justice is a rule for citizens as such. It cannot be a rule merely for the individual: as the medieval glossators put it, there cannot be one law for Peter and another for John. Not that every rule must or can apply to all citizens; there are divers rules for divers conditions and classes of men. An unmarried man is not under the duties of a husband, nor a trader under those of a soldier. But every rule must at least have regard to a class of members of the State, and be binding upon or in respect of that class as deter- mined by some definite position in the community. 1 They must be carefully distinguished from impeachment, which is a regular process known to the law, though an unusual one. 36 CHAP. FIRST BOOK OF JURISPRUDENCE This will hold however small the class may be, and even if it consists for the time being of only one individual, as is the case with offices held by only one person at a time. Certain rules of law will be found, in almost every country, to apply only to the prince or titular ruler of the State, or to qualify the application of the general law to him. In England, again, the Prince of Wales, as Duke of Cornwall, is the subject of rules forming a singular exception to the general law of property; and the Lord Chancellor has many duties and powers peculiar to his office. But these rules are not lacking in the quality of generality, for in every case they apply not to the individual person as such, but to the holder of the office for the time being. They may be anomalous with regard to the legal system in which they occur; and, like other rules of law, they may or may not be expedient on the particular merits of each case. They are not in any necessary conflict with the principles of legal justice merely because they are of limited or unique application. Equality. Next, the rule of generality cannot be fulfilled unless it is aided by the principle of equality. Kules of law being once declared, the rule must have the like application to all persons and facts II 37 JUSTICE ACCORDING TO LAW coming within it. Eespect of persons is incom- patible with justice. Law which is the same for Peter and for John must be administered to John and to Peter evenly. The judge is not free to show favour to Peter and disfavour to John. As the maxim has it, equality is equity.1 So much is obvious and needs no further exposition. |But it may be proper to point out that the rule of equality does not exclude judicial discretion. Often- times laws are purposely framed so as to give a considerable range of choice to judicial or executive officers as to the times, places, and manner of their application. It is quite commonly left to the judge to assign, up to a prescribed limit, the punishment of proved offences: indeed, the cases in which the court is deprived of discretion are exceptional in all modern systems. Apart from capital offences, there are only one or two cases in English criminal law where a minimum punish- ment is imposed, and none, it is believed, where there is no discretion at all. Certain remedies and forms of relief, in matters of civil jurisdiction, are said to be discretionary as contrasted with those which parties can demand as their right. Still, a judicial discretion, however wide, is to be 1 The working use of the maxim is not quite so simple as this. 38 FIRST BOOK OF JURISPRUDENCE exercised without favour and according to the best judgment which the person intrusted with the discretion can form on the merits of each case.1 Differences of personal character and local circum- stances are often quite proper elements in the formation of such a judgment, but any introduction of mere personal favour is an abuse. We still aim at assigning equal results to equal conditions. Judicial discretion is not an exception to the principle of equality, but comes in aid of it where an inflexible rule, omitting to take account of conditions that cannot be defined beforehand, would really work inequality. This implies that only such conditions are counted as are material for the purposes of the rule to be applied. Of course no two persons or events can be fully alike. What rules of law have to do is to select those conditions which are to have consequences of certain kinds: which being done, it is the business of the courts to attend to all those conditions, and, saving 1 In various cases where the risk of discretion being perverted by outside influence or pressure has seemed greater than that of spontaneous partiality, the holders of discretionary power or authority are deliberately exempted from being called on to give an account of their reasons. In such cases the discretion is said to be not judicial, but absolute. Examples: the protector of a settlement, the governing bodies of schools under the Public Schools Act. II 39 JUSTICE ACCORDING TO LAW judicial discretion where it exists, not to any others. A plaintiff' who argues his case in person may be tedious and offensive, but the judge must nevertheless do him justice as fully as if his argument were excellent. This may seem too obvious for statement in England, but there are parts of the British Empire where it is not, or within recent times was not, so. Suppose, on the other hand, it were a rule of law that no man who wore a white hat before May-day could take a legacy within the year. It would not be competent to any court to say that, as between A and B, rival claimants for the same legacy, the legacy should be paid to A, notwithstanding that he had worn a white hat in April, because he was a poor man and more in want of money than B. The law cannot make all men equal, but they are equal before the law in the sense that their rights are equally the subject of protection and their duties of enforcement. Further, as the requirement of generality leads Certainty: P . n scientific to that ot equality, so does the requirement of character equality lead to that of certainty, which brings in otlAM' its train the whole scientific development of law. We must administer a general rule, and administer it equally. There can be no law without generality; 40 CHAV. FIRST BOOK OF JURISPRUDENCE there can be no just operation of law without equality. But we cannot be sure of a rule being equally administered at different times and in the cases of different persons unless the rule is defined and recorded. Justice ought to be the same for all citizens, so far as the material conditions are the same. Now to carry out this idea the dispenser of justice ought to be adequately furnished with two kinds of information. He should know what is accustomed to be done in like cases, and when- ever new conditions occur he should know, or have the means of forming a judgment, which of them are material with a view to legal justice, and which are not. Moreover, there must be some means of securing an approximate uniformity of judgment; otherwise judges and magistrates of all degrees will make every one a law of his own for himself, and the principle of equality will not be satisfied. Justice dealt out according to the first impression of each particular case, the u natural justice" of an eastern king sitting in the gate, is tolerable only when the community is small enough for this function to be in the hands of one man, or very few, and its affairs are simple enough for offhand judgments not to produce results of manifest in- equality. This is as much as to say that in a ii JUSTICE ACCORDING TO LAW 41 civilised commonwealth law must inevitably become a science. The demand for certainty becomes more exacting as men's affairs become more complex, and the aid of the courts is more frequently sought. Trade and traffic, in their increasing volume, speed, and variety of movement, raise new questions at every turn, and men expect not only to get their differences settled for the moment, but to have solutions which will prevent the same difficulties from giving trouble again. How far would natural justice carry us, for example, towards a settlement of the problems involved in making contracts by letter, telegraph, or telephone? Hence law becomes an artificial system which is always gathering new material. The controverted points of one generation become the settled rules of the next, and fresh work is built up on them in turn. Thus the law is in a constant process of approximation to an ideal certainty which, by the nature of the case, can never be perfectly attained at any given moment. Every one who has studied the law knows that the approximation is apt to be a rough one, and is exposed to many disturbing causes. We shall see { something, in the latter part of this work, of the methods by which it is effected in the system of the Common Law. Meanwhile it is to be re- 42 CHAP. FIRST BOOK OF JURISPRUDENCE membered that the political sciences do not claim to be exact in either a speculative or a practical point of view. For the practical purposes of a State governed according to law, that degree of certainty suffices which will satisfy the citizens that the law works on the whole justly and without favour; and in archaic societies not only is a pretty rough kind of certainty sufficient, but no other is possible. (jertainty Eules of law have to be applied to the facts of law limited by ascertained by the tribunal. Now the facts are attainable . certainty often m dispute; indeed those cases are a small 1 faa"' minority where there is a real difference between the parties, and that difference turns merely upon the application of the law to undisputed facts.1 And the process of forming a judgment as to the truth of the facts, where conflicting accounts are offered, is itself an approximate one at best for human faculties. In early stages of legal institu- tions we find that there is hardly so much as a serious attempt in this direction; the matters at issue are disposed of by methods which seem to I us at this clay not only artificial and inadequate, 1 Much of the work done by the machinery of justice consists in enforcing just claims to which there is no defence; but mere refusal or neglect to pay one's debts without compulsion of law does not constitute a real matter in difference. ii JUSTICE ACCORDING TO LAW 43 but out of all relation to any grounds of reasonable conclusion. The task would indeed seem to have been thought above the power of mortals. Ordeal in its various forms is a direct appeal to super- natural aid in the supposed incompetence of human understanding. Proof by oath, where the oath is conclusive, a procedure of which the medieval "compurgation" is the best known example, is the same thing in a milder form. Wherever and so long as the facts cannot be ascertained with any precision, there is no occasion for precise or elaborate rules of law. The law cannot be more finely graduated than the means of ascertaining facts; and the judicial investigation of facts with some- thing approaching completeness and exactness dates only from relatively modem times. Hence the development of law is largely bound up with the development of procedure. As improved procedure enables the law to grapple with complex facts, the aspirations of lawyers and citizens are enlarged, and they are by no means content to aim at the minimum of certainty which will ensure public acquiescence in the justice of the State, and a tolerable average of obedience. On the contrary, they will aim (as men do in every science and art, when once they become seriously interested in it) 44 CHAP. FIRST BOOK OF JURISPRUDENCE at an ideal maximum. But even in the most advanced polity we shall find now and then that the subtilty of forensic and judicial thought outruns the possibilities of effectual inquiry and adminis- tration. Questions are sometimes put to juries which it is hardly possible for any one not learned in the law to see the point of. Law a In assuming a scientific character, law becomes, distinct science: and must needs become, a distinct science. The not co- . . . extensive division of science or philosophy which comes with ethics. . . nearest to it in respect of the subject-matter dealt with is Ethics. But, though much ground is common to both, the subject-matter of Law and of Ethics is not the same. The field of legal rules of conduct does not coincide with that of moral rules, and is not included in it; and the purposes for which they exist are distinct. Law does not aim at perfecting the individual character of men, but at regulating the relations of citizens to the commonwealth and to one another. And, inas- much as human beings can communicate with one another only by words and acts, the office of law does not extend to that which lies in the thought and conscience of the individual. The possible coincidence of law with morality is limited, at all events, by the range of that which II 45 JUSTICE ACCORDING TO LAW theologians have named external morality. The commandment, "Thou shalt not steal/' may be, and in all civilised countries is, legal as well as moral: the commandment, "Thou shalt not covet," may be of even greater importance as a moral precept, but it cannot be a legal one. Not that a legislator might not profess to make a law against covetous- ness, but it would be inoperative unless an external test of covetousness were assigned by a more or less arbitrary definition; and then the real subject- matter of the law would be not the passion of covetousness, but the behaviour denned as evincing it.1 The judgment of law has to proceed upon what can be made manifest, and it commonly has to estimate human conduct by its conformity or otherwise to what has been called an external standard. Action, and intent shown in acts and words, not the secret springs of conduct in desires and motives, are the normal materials in which courts of justice are versed, and in the terms of which their conclusions are worked out and de- livered. With rare exceptions,2 an act not other- 1 The saying ascribed (it seems apocryphally) to Dr. Keate of Eton: "Boys, if you're not pure in heart, I'll flog you," exemplifies in a neat form the confusion of external and internal morality, 2 Those exceptions are perhaps of an accidental and not very substantial kind; but, after all corrections and allowances, "malice" does sometimes in English law mean evil motive, such 46 CHAP. FIRST BOOK OF JURISPRUDENCE wise unlawful in itself will not become an offence or legal wrong because it is done from a sinister motive, nor will it be any excuse for an act contrary to the general law, or in violation of any one's rights, to show that the motive from which it proceeded was good. If the attempt is made to deal with rules of the purely moral kind by judicial machinery, one of two things will happen. Either the tribunal will be guided by mere isolated impressions of each case, and therefore will not administer justice at all; or (which is more likely) precedent and usage will beget settled rule, and the tribunal will find itself administering a formal system of law, which in time will be as technical, and appeal as openly to an external standard, as any other system. This process took place on a great scale in the formation of the Canon Law, and on a considerable scale in the early history of English equity jurisdiction. Law can- Besides and beyond the limitation of the field aT/mora?6 of law to external conduct, there are many actions may some- an(l kinds of conduct condemned by morality times react i • -i r • 1 ±. i i on the which tor various reasons law can either not deal standard WU^ at a^ 01 Can ^ea^ W^n 0nty *n an ^11C^" as personal enmity or vindictiveness. For further consideration of intention and motive see ch. vi., p. 138 below. ii JUSTICE ACCORDING TO LAW 47 dental and indirect manner. It would be the vulgarest of errors (as we have already hinted) to suppose that any kind of approval is implied in many things being left to the moral judgment of the community and to such pressure as it can exercise. Law does not stand aside because law- givers or judges think lightly of such things, but because, whether from permanent or from transitory causes, the methods of legal justice are not appro- priate for dealing with them, and the attempt to apply those methods would, so far as it could be operative at all, probably do more harm than good. At the same time rules of law may well have, in particular circumstances, an effective influence in maintaining, reinforcing, and even elevating the standard of current morality. The moral ideal present to lawgivers and judges, if it does not always come up to the highest that has been conceived, will at least be, generally speaking, above the common average of practice; it will represent the standard of the best sort of citizens. This is especially the case in matters of good faith, whether we look to commercial honesty or to relations of personal confidence. With few exceptions, the law has, in such matters, been constantly ahead not only of the practice but of the ordinary professions of 48 FIRST BOOK OF JURISPRUDENCE chap. business men. We have similar results on a more striking scale when a law which is not indigenous brings in with it the moral standards on which it is founded. Thus a good deal of European morality has been made current in India by the Anglo-Indian codes; and European morality itself has been largely moulded not only by the teaching of the Christian Church, but by the formal embodiment of that teaching in both ecclesiastical and secular laws. The treatment of homicide by early English criminal law was founded on the extremely strict view taken by the Church of the guilt of bloodshedding; and the extinction of duelling in this country seems to be due, in no small part, to the steady refusal of English law to regard killing in a duel, even without any circumstances of treachery or unfairness, as any- thing else than murder. We are not speaking here of the mere fact that persons abstain from unlawful conduct through dread of the legal con- sequences, a fact which, taken by itself, has no moral significance at all. Legal rules Again, rules of law differ from rules of morality in things morally in excess as well as in defect. It is needful for the peace and order of society to have definite rules for a great many common occasions of life, although no II 49 JUSTICE ACCORDING TO LAW guidance can be found in ethical reasoning for adopting one rule more than another. There is no law of nature that prescribes driving on either the right or the left-hand side of the road, as is plainly shown by the fact that our English custom to take the left-hand side is the reverse of that which is observed in most other countries. But in a land of frequented roads there must be some fixed rule in order that people who meet on the road may know what to expect of one another. And, the rule being once fixed either way for the sake of general convenience, we are bound in moral as well as in legal duty to observe the rule as we find it. On much the same footing are the rules which require particular forms to be observed in particular trans- actions, for the purpose of making the proof of them authentic and easily found, or in the interest of the public revenue, or for other reasons. There are not many such cases in which the form actually imposed by the law can be said to be in itself the only appropriate one, or obviously much better than others that might be thought of. But, since it has been thought fit to require some form, it is necessary that some one form should be authorised. Here, too, the choice between courses which in themselves were morally indifferent is determined by the law, E 50 FIRST BOOK OF JURISPRUDENCE chai>. cases. and thenceforth it is the moral as well as the legal duty of every one concerned, if he will act as a good citizen and a prudent man, to do things in the appointed manner and form. Legal But there is more than this. As in many cases responsi- bility with- acts and conduct that are morally blameworthy must out moral . . fault in go quit of anything the law can do, so in many cases, certain on the other hand, persons are exposed, lor reasons of public expediency, to legal responsibilities which may or may not be associated with moral fault, and which cannot be avoided even by the fullest proof that in the particular case the person who is answer- able before the law was morally blameless. A man may, of course, make himself answerable by his own promise for many things independent of his moral deserts or even wholly beyond his control: but we are here speaking of liability not assumed by the party's own act and consent, but imposed by a rule of law which does not depend on any one's assent for its operation. Thus a man is liable in most civilised countries for the wrongful acts and defaults of his servants in the course of their employment, whatever pains he may have taken in choosing competent servants and giving them proper in- structions. Obviously this is a hard rule for the employer in many cases; but its existence in every II 51 JUSTICE ACCORDING TO LAW system of law shows that in the main it is felt to be just. Again, both Eoman and English law have made owners of buildings1 responsible, in various degrees, for their safe condition as regards passers- by in the highway, or persons entering them in the course of lawful business; and this without regard to the amount of the owner's personal diligence in the matter. Again, questions often arise between two innocent persons, of whom one or other must bear the loss occasioned by the wrongful act of some one from whom redress cannot be obtained; as when a man who has obtained goods by fraud from their owner sells them to an unsuspecting third person, and then absconds, leaving nothing behind him. Here the original owner and the buyer may be equally free from fault, but they cannot both have the goods, and the price cannot be recovered. Hardship to one or the other is inevitable. In all these cases the loss or damage, as between the two innocent parties who are left face to face, may be considered as accidental. The rule of law has to determine as best it can on which side the loss shall fall; and, since by the hypothesis neither party has incurred moral blame, and this is the 1 This is by no means the full measure of the rule in our law. For simplicity's sake only part of it is now stated. 52 FIRST BOOK OF JURISPRUDENCE chap. very cause of the difficulty, it is plain that the rules of ordinary social morality will afford no guidance. We have to resort either to considerations of general public expediency, or, if no obvious balance of convenience appears either way, to the purely technical application of rules already settled in less obscure matters. And this last method is not a mere evasion of the problem, but is a reasonable solution so far as no stronger reason can be assigned to the contrary. For the principle of certainty requires that a rule once settled shall be carried out to its consequences when no distinct cause is shown for making an exception or revising the rule itself. If any sense of hardship to the individual citizen remains after these considerations have been weighed, and it has also been observed that citizens have an equal chance of benefit as well as burden under special rules of this kind, it may be said that exposure to this kind of liability is part, and not a large part, of the price which the individual has to pay the State for the general protection afforded by its power, and the general benefit of its institutions. Develop- Thus neither the work nor the field of legal law neces- science can be said to coincide with those of any artificial, other science. And the development of this, as of all other distinct branches of science, can be carried ii JUSTICE ACCORDING TO LAW 53 on only by the continuous effort of persons who make it the chief object of their attention in successive generations. This has been recognised in the institutions, both practical and academical, of all civilised nations. A civilised system of law cannot be maintained without a learned profession of the law. The formation and continuance of such a learned class can be and has been provided for, at different times and in different lands, in various ways which it does not now concern us to mention in detail. It is not necessary for this purpose that the actual administration of justice should be wholly, or with insignificant exceptions, in the hands of persons learned in the law, though such is the prevailing tendency of modern judicial systems. It is enough that the learned profession exists, and that knowledge of the law has to be sought, directly or indirectly, in the deliberate and matured opinion of its most capable members. And the activity of modern legislation makes little or no difference to this: for we are not now speaking of the general policy of the lawgiver, which in a free country is and must be determined not by any one class, but by the people through their representatives. The office of the lawyer is first to inform the legislature how the law stands, and then, if change is desired 54 FIRST BOOK OF JURISPRUDENCE chap, ii (as to which he is entitled to his opinion and voice like any other citizen), to advise how the change may best be effected. Every modern legislature is constantly and largely dependent on expert aid of this kind. A well-framed Act of Parliament, whatever amount of novelty it may contain, is as much an application of legal science as the con- sidered judgment of a court. Legislation under- taken without legal knowledge is notoriously ineffectual, or, if not ineffectual, apt to create new troubles greater than any which it cures. There is no way by which modern law can escape from the scientific and artificial character imposed on it by the demand of modern societies for full, equal, and exact justice CHAPTEE III THE SUBJECT-MATTER OF LAW Eules of law being the rules which are deemed Contents of law: binding on members of the State as such, and are duties of subjects. administered, as and because thus binding, by courts of justice, we have next to see of what kind are the contents of those rules. It seems that we may describe them, in the most general terms, as the duties of subjects under the common authority of the State, together with the conditions by which those duties are defined and made capable of application. We speak here of subjects, not citizens. For there are members of the State who by reason of natural or conventional disability (which may be temporary or permanent) do not enjoy full political rights: and there are strangers who dwell for a longer or shorter time in the jurisdiction of the State without being or becoming 56 FIRST BOOK OF JURISPRUDENCE chap. members of it. Persons in either of these positions, as they are admitted to the benefit and protection of the laws, are likewise expected to conform to them: that is to say, they are not the less subjects because they are not or cannot be citizens. It would not be correct, however, to say that alien residents within a State are altogether subject to the same duties as citizens; for they may be and often are exempt from some duties on particular grounds of policy, and from others because they are not capable of the office or station to which those duties are annexed. Hereafter we shall find it convenient to use the term "citizen" as including all subjects unless the stricter meaning is indicated. Duty, posi- We ascribe duty to any one who is bound by a rule. tive and negative. Every such person s duty is to conform to the rule. If the rule is one which courts of justice administer, the duty is a legal one. Such duties alone being within our present scope, it will be understood that others are not included in the term unless it is expressly qualified: similarly of rights. Duty may be active or positive—that is, the rule may require a person bound by it to do something in the way either of some definite action or of a continued course of action. A parent is bound to maintain his children, a debtor to pay his debt at the proper Ill 57 THE SUBJECT-MATTER OF LAW time, or when demanded. Or it may be a passive or negative duty—that is, the rule may forbid something from which a person bound by it must abstain. Thus we must all abstain from theft and other criminal offences; and in the sphere of voluntary choice negative undertakings are common, as when an actor engaged for a particular theatre binds himself not to act elsewhere, or a retiring partner not to compete with the firm. A positive duty may carry negative duties with it as a necessary accompaniment. If Peter has bound him- self by a lawful contract to sell his house to John, he must hand over possession to John at the proper time, and in the meantime he must not sell or convey the house to any one else. Performance is the more appropriate word for the fulfilment of positive duties, observance for negative ones; but this nicety of language is not always regarded. Strictly speaking, law cannot compel the per- Only nega- ♦ • * -i ^ive duties formance of positive duties. A negative duty can are strictly enforce- be directly enforced by physical constraint, or by abie. otherwise depriving a man of the means of action. But a positive duty can be enforced only in an indirect manner, by attaching such consequences to non-performance as to make performance in most cases and for most persons the preferable 58 FIRST BOOK OF JURISPRUDENCE chap. course. In this sense a man may and often does act under compulsion of law, but he cannot really be compelled to act. Where the performance con- sists in the payment of money which the party bound has sufficient means to pay, or in the delivery of specific property which is in his pos- session, it may be within the power of the law to do what he ought to have done—that is, to take from the debtor's property the amount due and pay it to the creditor, or to put a purchaser in possession of the property to which he is entitled, or otherwise as the case may be. How far this can be done in any particular system of law depends not only on what is physically possible, but on the authorised methods of procedure and execution. Similarly there may be power (and there is now in England) to appoint some one to do any formal act which ought to be done by the party, and which he refuses to do. But a performance requiring per- sonal skill, such as the singing of a part in an opera, or the painting of a picture, obviously cannot be compelled by any normal human power. Again the observance of a negative duty cannot become impossible except by an actual breach, which may or may not render subsequent observance impossible according to the nature of the facts: but the in THE SUBJECT-MATTER OF LAW 59 possibility of an active duty being performed is subject to many accidents, which moreover may be beyond the parties' control. If a man has promised to pay a thousand pounds six months hence, and has lost all his property, with or without his own fault, before the day comes, it is plain that his creditor cannot be paid. Ex nihilo nihil Jit. Again the performance of any duty that involves personal skill or attention may be frustrated by illness or other misadventure disabling the party. These matters, however, belong to the machinery of law and the adjustment of remedies rather than to the elementary substance of duties and rights. Eight is the correlative of duty. As duty is a Right: indcter- burden imposed by law, so right is freedom allowed ruinate as or power conferred by law. Every right implies 0r deter' duty somewhere: but it must be noted that we claim orS speak of right sometimes in a determinate and power< sometimes in an indeterminate sense. For it is commonly said that a man has a right to be free from assault and unwarranted imprisonment, to deal with things belonging to him (within certain limits) as he will, and so forth: and whatever tends to abridge legal freedom or interfere with its exercise is said to diminish a man's rights, or to be an invasion of them. These rights have not 60 FIRST BOOK OF JURISPRUDENCE answering to them any particular determinate duty of this or that citizen; nevertheless they are more than bare liberty or power. The fact that I can do as I please until some superior force or irremovable obstacle hinders me is a merely natural fact, and law has nothing to say to it. So far as actual power or freedom from restraint in doing this or that act is concerned (say, taking fish in a par- ticular month, or travelling to London to give evidence before a Eoyal Commission), it is all one whether there is no law bearing on the matter, or a law which disallows the act if done in some other way or at some other time, but allows it now and thus, or a law which encourages it, as by authorising payment of a witness's travelling expenses. The act may be right in the popular and rudimentary sense of not being forbidden, but freedom has not the character of legal right until we consider the risk of unauthorised interference. It is the duty of all of us not to interfere with our neighbour's lawful freedom. This brings the so-called primitive rights into the sphere of legal rule and protection. Sometimes it is thought that lawful power or liberty is different from the right not to be interfered with; but for the reason just given this opinion, though plausible, does not seem correct. There is more in THE SUBJECT-MATTER OF LAW 61 than this when any subject wrongfully meddles with another's person or property; he forthwith incurs the specific duty of making just compensation, and the other acquires the specific right of calling for the same. This right is not merely freedom, but a definite claim, the power of getting one's due by process of law: it is what our law calls a right of action. On the other side the duty is no longer general, but has regard to a determinate claim of some one interested in its performance; it loses in extension but gains in intension. There is not only a right but a claim, not only duty but liability. Generally the power of enforcing a rule of law belongs to those for whose sake it exists, and as against whom it has been broken. But the power and the benefit need not be co-extensive. In many branches of law the State, through its public officers, assumes the power of setting the law in motion, sometimes exclusively, sometimes con- currently with the person aggrieved: sometimes any citizen whatever is authorised to take pro- ceedings of his own motion. It would not be correct, however, to say that right is more extensive than duty in such cases: rather the same facts may produce several duties or liabilities. There seems to be no valid reason against ascribing rights 62 FIRST BOOK OF JURISPRUDENCE chap. to the State in all cases where its officers are enjoined or authorised to take steps for causing the law to be observed, and breakers of the law to be punished. If this last statement is accepted, there will be no occasion to say, as is often said, that there are duties without any correlative rights. Doubtless there are duties without any determinate rights corresponding to them: indeed, this is the case, in any view, with the negative duties which we owe to the community at large. For my duty not to damage other people's goods, for example, is one duty, not millions of separate duties owed to every one who has anything to be damaged, or in respect of every separate chattel of any value. Positive duties of a public kind, such as the duty of paying taxes, or serving on a jury, or aiding to keep the peace when called on by an officer of justice, are in the same plight. So are duties towards, or rather in respect of irrational animals, inasmuch as they cannot exercise rights;1 and so were duties in respect of slaves in systems of law which reeog- 1 If there were any purpose to be served by it, there would be no more difficulty in enabling proceedings to be taken, by a legal fiction, in the name of an animal as plaintiff or prosecutor than there was in taking formal criminal proceedings against animals, of wrhich there are many medieval examples. in THE SUBJECT-MATTER OF LAW 63 nised slavery. Under any of these conditions it seems more reasonable and more in accordance with the current usage of speech to say that the right correlative to the duty is in the hands of the State than to say that there is none. Where the State acts in the manner of a creditor and for the direct benefit of the public revenue, as in collecting taxes, still more, where it acquires and deals with specific property in the way of buying, holding, and selling, it seems that the State has rights in the fullest sense. But this cannot be adequately considered without reference to the doctrine of legal personality. Whether the State can have duties has been Can the • State have a point fruitful of discussion, though the point duties? is perhaps of no great practical importance. It is clear that the person or body holding supreme political power in a commonwealth (assuming that there is such a person or body) has only to use that power to be legally free. No less clear is it by experience that while claims against the State are made in various ways more difficult to maintain than claims against private members of the State, yet in the practice of civilised nations claims which are in substance against the State are dealt with by courts of justice, 64 FIRST BOOK OF JURISPRUDENCE chap. and lead, if the claim is made good, to redress being granted out of public funds. But this is compatible with the view that the State submits these questions to its own tribunals only as a matter of grace and favour, though the grace may be so customary that citizens look on it as a political and moral right. And that is certainly the view which the forms and rules of our own law have embodied. Moreover, we said that the primary mark of rules of law is to be binding on citizens as such. The State is not a citizen nor an aggregation of citizens, and a system of law can quite well exist without the State ever being considered to be legally bound towards a citizen. All jurisdiction, nevertheless, appears to have begun in consent, and all government ultimately rests on consent; not in the sense that it was ever founded by express convention, but that no government can in the long run be carried on against the dissent of an effective majority. Therefore it seems hard to say that the State cannot by its own consent be really subject to rules of law so long as that consent is in force. In practice individual citizens may count on the submission of the State to its own tribunals (whatever the extent of it may be) not being arbitrarily revoked. The security is in THE SUBJECT-MATTER OF LAW 65 the same, in the last resort, that we have for the due administration and enforcement of the ordinary law binding on subjects. Moreover, persons and bodies representing the State in various departments of its functions may well come before the law id a position not necessarily distinguishable from that of ordinary citizens. But this again brings us to the question of legal personality which still lies ahead. According to that view of the nature of law which regards it as the command of a supreme political authority and nothing else, it is difficult to ascribe rights, and barely possible to ascribe duties, to the State. But as we do not consider such a view to rest on any sound foundation, we are not concerned here with its consequences. If we accept Hobbes's derivation of the State and all civil order from an original covenant by which every man surrendered his natural right or power into the hands of a sovereign person or body from whom all law thenceforth proceeds, we must accept likewise the consequences which Hobbes deduced and set forth once for all:1 otherwise not. It seems at first sight a paradox to say that Can a man have rights a man can have rights against himself. The moral against • i-i -i-i -i -ip himself? duties which are called self-regarding are so far 1 Leviathan, ch. xxvi., cp. ch. xxix. F 66 FIRST BOOK OF JURISPRUDENCE chap. recognised by criminal law that some of the grosser breaches are punishable; but one cannot claim redress from oneself, in other words a right of action against oneself is not possible. Again a man may in the exercise of his lawful freedom confer many rights on others which limit that exercise in various ways and for periods of varying duration; but the duties are binding on him just because the rights are not in his own control but belong to the other parties. Yet it is conceivable and possible that a man should initiate compulsory proceedings against himself: as when, as the law of some countries now allows, a drunkard enters of his free will a licensed institution for the treatment of dipsomania, and, having so entered it, may lawfully be detained for a certain time notwithstanding any attempted revocation of his consent. In such a case the patient is after a sort his own accuser and judge; and as this power of self-restraint is conferred for his own benefit, we cannot but allow that he exercises a right. Both the right and the corresponding duty of submitting to the self-imposed restraint are called into existence by the party's own option. From the moral point of view we should say that a man in this condition is really divided Ill 67 THE SUBJECT-MATTER OF LAW against himself, and that the law, taking notice of this abnormal fact, enables him to strengthen his better against his worser self. In ethics all duties have regard to oneself in some sense. As there is no necessary question of an external tribunal, even the most informal, or of external acts or consequences, there is no real difficulty about this. If we speak of u duty towards God," we introduce an approach to the legal conception of duty; the Supreme Being (or, in polytheistic religions, a superior being determined as appropriate to the occasion by particular functions or attributes) taking the place of an external human lawgiver, or of the State. And in fact it may be observed that moral rules which belong exclusively or eminently to definite religious systems have ever tended to assume a formal and legal character. Ethical feeling (where it survives this treatment) has to be satisfied and reinforced by counsels of perfection and other forms of aspiration to an ideal beyond and outside the rules. Wrong is in morals the contrary of right. Wrong. Eight action is that which moral rules prescribe or commend, wrong action is that which they forbid. For legal purposes anything is wrong which is forbidden by law; there is wrong done 68 CHAP. FIRST BOOK OF JURISPRUDENCE whenever a legal duty is broken. A wrong may be described, in the largest sense, as anything done or omitted contrary to legal duty, considered in so far as it gives rise to liability. Hence the existence of duty, as it involves right, involves also the possibility of wrong; logically no more than the possibility, though we know too well that all rules are in fact sometimes broken. Duty, right, and wrong are not separate or divisible heads of legal rules or of their subject-matter, but different legal aspects of the same rules and events. There may be duties and rights without any wrong; this happens whenever legal duties are justly and truly fulfilled. There cannot, of course, be a wrong without a duty already existing, but wrongs also create new duties and liabilities. Strictly speaking, therefore, there can be no such thing as a distinct law of wrongs. By the law of wrongs we can mean only the law of duties, or some class of duties, considered as exposed to infraction, and the special rules for awarding redress or punishment which come into play when infraction has taken place. There is not one law of rights or duties and another law of wrongs. Nevertheless there are some kinds of duties which are more conspicuous in THE SUBJECT-MATTER OF LAW 69 in the breach than in the observance. The natural end of a positive duty is performance. A thing has to be done, and when it is duly done the duty is, as we say, discharged; the man who was lawfully bound is lawfully free. We con- template performance, not breach. Appointments to offices are made, or ought to be, in the expecta- tion that the persons appointed will adequately fulfil their official duties. When I take a ticket from London to Oxford, I hope and expect that the railway company will convey me safely and punctually to Oxford. The same may be said of negative duties which are annexed to positive ones, or have been assumed by the party's own undertaking. But when we come to negative duties imposed by the general law, we find our attention directed to the event of their violation. For the elementary duties we owe to all men have no natural end short of life's end itself. An honest man is always observing the duty of not stealing, and has never done observing it so long as he lives honestly. There is nothing to fix the mind's eye to one moment of negative observance more than another. Dramatic incidents of resistance to temptation make no difference in the legal view. A man can do no more than 70 FIRST BOOK OF JURISPRUDENCE chap. observe the rule, and ought to do no less, whatever the additional moral merit of resisting temptation may be. Therefore it is the breach of such duties that gives us a defined point of concentration, and in practice we approach the conception of the duty through the fact of the wrong done. Again the term wrong suggests not only a right violated, but some one's right, in the full and determinate sense of that word, to redress; although what is really correlated to the injured person's right to redress is not the wrong itself, but the new duty and liability arising from it. Thus we have in English usage a tendency, first to limit the word wrong, in legal speech, to cases where a general duty is broken, and, further, to use it by preference in cases where the enforcement of the law rests with the injured person in the first instance, or altogether, and not with the officers of the State. Great authors in our law, Hale and Blackstone, have spoken of "Public Wrongs," but it is more usual to speak of crimes or offences. Arrange- We may shortly sum up the result of the pre- ment bv . duties or ceding discussion by saying that there is no harm rights. ^ taking the conception of Duty for our clue or basis of classification in dealing with some groups of legal rules, that of Eight in dealing with others, in THE SUBJECT-MATTER OF LAW 71 and for others again that of Wrong, determined by reference either to the duty disregarded or to the right violated. The matter is essentially one of convenience. Only we must remember that in this we are not dividing the actual contents of legal rules, but distinguishing aspects, and . making sometimes one and sometimes another prominent as it suits us. Duty and Eight are not really more divisible in law than action and reaction in mechanics. Hence it would seem that such topics of discussion as whether a system of law should be arranged under heads of duties or heads of rights are at best of secondary importance, and cannot lead to conclusions of any universal validity. The practical lawyers instinct is to regard anxious dwelling on these topics with a certain impatience, an impatience that may be said to border on contempt. If he is pressed for reasons, and ventures to give them offhand, his reasons are perhaps more likely to be bad than good. Yet reflection appears to show that in this as in many other cases the practical instinct is in the main justified, although it may be long before the justification is made explicit in a form that will satisfy philosophers. Experience builds better than it knows. 72 FIRST BOOK OF JURISPRUDENCE chap. Auxiliary So far as it is worth while to indicate any rules of law. general preference in classification, and other things being equal, duties appear to come in the natural and logical order before rights, for it is of the essence of law to assign rules of conduct, and a rule of conduct which did not affirm some kind of duty would not be a rule. This is more clearly seen in the case of moral rules. No one would think of treating morality as a system of rights. However that may be, there is more than duties and rights to be taken into account before we have covered the subject-matter of jurisprudence: and this to such an extent that we should still be left very far from a complete system of law if we were furnished with an exhaustive list of all the legal rules which can be said in any natural sense to declare duties or affirm rights. Duties and rights are mere disjointed parts of an organism, so to speak, until we know how they are connected with the acts and events of human life. They are attached to certain persons; they have their modes of beginning and of continuance assigned by rules of law, and there are other rules according to which they cease. A mere detached knowledge of the contents of legal rules would be of little use without knowing the conditions which determine in THE SUBJECT-MATTER OF LAW 73 their application. In order to have any real working acquaintance with a system of law we must inquire, not only what duties and rights are recognised, but how rights are acquired and lost; what rights are capable of transfer, and how; by what acts and events duties are imposed; how far and in what ways duties can be transmitted; and how they are discharged. The conditions defining these things are therefore, as mentioned at the beginning of this chapter, an integral part of the subject-matter of law, and the rules which declare them are among the most important. Some branches of the law may be said, indeed, almost to consist of rules of this kind. They set forth the conditions on which rights and duties depend, but they do not for the most part declare any right or duty in the first instance. When a man attains full age is a very practical question, and the statement that in England every one under the age of twenty-one years is an infant is certainly a proposition of law; but it does not state any duty or right. Legal capacity is not a right, still less is the want of it a wrong. Persons dealing with infants are subject to risks and duties which may be learnt from other sources; the rule only tells us who is an infant. Again, we are all bound 74 FIRST BOOK OF JURISPRUDENCE chap. to respect the rights of ownership; owners are also subject to a variety of special duties. To bring the legal rules of conduct into relation with actual facts we have to know how people become owners, and how ownership and other interests in property are transferred. It is often much easier to know what are the owner's rights, whoever he may be, than to know who the owner is. Again, every man is bound to pay his debts, and this, viewed from the other side, is the creditor's right to be paid. But what is to happen if the debtor dies, or the creditor? What becomes of the duty and the claim? In the literature of English law the exposition of this and other incidental matters fills two large but by no means diffuse volumes, well known to lawyers as "Williams on Executors." Without a body of rules to determine title "and succession the law of pro- perty would be in the air. Especially does this hold in that most important and difficult part of the law of property which deals with Possession. In almost every branch of the law Possession may have far-reaching and decisive consequences. The legal idea of Possession, though based on elementary facts of human nature and society (or rather, perhaps, because so based), is among the highest and hardest we have to grapple with. But the practical in THE SUBJECT-MATTER OF LAW 75 consequences in a given system of law depend largely on the rules that determine how possession is acquired, transferred, and lost. Ultimately rules of this kind enable us to fix the duties and rights of parties in the particular cases. They exist for the sake of ascertaining rights and duties. But they do not, in the first instance, affirm any specific right or duty. We may conveniently call them "determining" rules when we desire to speak of them by a compendious name. Further, rules of law are rules in and for a Rules of evidence living commonwealth, active and operative precepts, and pro- • • • t -r» ceclure. not merely contemplative propositions. In Professor Holland's happy phrase, law has to deal with rights in motion as well as at rest. Duties have to be enforced and rights have to be vindicated. Beyond this, modern courts of justice devote much of their best labour and skill to quiet non-contentious or not fully contentious work of which the public at large, with its dramatic and criminalist view of legal proceedings, is almost unaware. The adminis- trative business of courts of equity and probate jurisdiction is of this kind. Such work is directed to defining and preserving the rights of parties rather than enforcing them. In many cases there is no hostile contention at all; the parties only 76 FIRST BOOK OF JURISPRUDENCE chap. want to be certified what their rights are. In these processes, as well as in the coarser and more conspicuous ones of litigation between adversaries, duties and rights are constantly modified and transformed. One duty or set of duties is dis- charged or extinguished and another arises. After judgment given the duties and claims are not the same as before. There is a new duty, that of satisfying the judgment. And herein the State, through its judicial and executive officers, has its own active and more or less independent part, at least in all modern systems. Thus we need a whole machinery of auxiliary rules1 to guide the citizen in seeking the aid of courts of justice, and to regulate the powers and discretion of the court itself. In criminal affairs the need is no less. The commonwealth is supreme and can punish offenders, but it must punish according to law. Nay, we require security that penal law shall be abundantly just. It is better that some offenders should go scot-free than that condemnation and punishment should seem 1 Procedure lias been judicially described as "the mode of pro- ceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer,—the machinery as distinguished from its product:" Lush L.J. in Poyscr v. Minors (1381)'" 7 Q.B. Div. 329, 333. in THE SUBJECT-MATTER OF LAW 77 arbitrary. When we consider a system of law from the citizen's point of view rather than the lawyer's, as a material element in the political stability of the commonwealth, we may almost say that certainty in procedure is more important than certainty in the substance of law. We see then that the mere sum of existing Substan- duties and rights is not the law, nor even a Adjective separable or working portion of the law. It is but one element, the positive or static element as one might call it. In order to build up the organic life of law we have need of the genetic element, the principles which determine the positive rules in their concrete application to persons, acts, and events; and of the dynamic element, the rules whereby legal consequences are made manifest and worked out. Positive rules of law tell us what is just; determining rules (which we might also call the law of Title, usino- that word in the largest sense) point out what is the justice of the case in hand; the rules of procedure show us how justice is to be done. What we have spoken of as the positive law of duties and rights is commonly called Substantive Law. The law of "determining" rules, which has not in English any technical or generally ac- 78 FIRST BOOK OF JURISPRUDENCE chap, hi cepted name, is usually and conveniently treated as auxiliary to the substantive law, and attached, for purposes of exposition and reference, to its various heads. Thus the Law of Vendors and Purchasers (that is, of land and interests in land, as the term is always understood among English- speaking lawyers)1 is dealt with as a branch of the law of Eeal Property. For equally good reasons of convenience Pro- cedure is dealt with as a topic apart. Codes of civil and criminal procedure are in force in the majority of civilised countries, including British India, Here in England Ave have the substance of a code of civil procedure, though not the name, in the Piules of the Supreme Court. Procedure, considered in its relation to substantive law, has been conveniently called Adjective Law by modern writers. 1 It would be natural enough for a continental jurist left to himself in an English law library to turn to a treatise on Vendors and Purchasers in the expectation of finding something about the sale of goods, or to a treatise on the Contract of Sale for information about the transfer of land in English-speaking countries. In either case he would be signally disappointed. The reasons of this are historical and, from the philosophic point of view, accidental. CHAPTEE IV DIVISIONS OF LAW It is not possible to make any clear-cut division of Divisions of legal the subject-matter of legal rules. The same facts ciassifica- . tion are are often the subject of two or more distinct rules, formal, not material. and give rise at the same time to distinct and different sets of duties and rights. The divisions of law, as we are in the habit of elliptically naming them, are in truth divisions not of facts but of rules; or, if we like to say so, of the legal aspects of facts. Legal rules are the lawyer's measures for reducing the world of human action to manageable items, and singling out what has to be dealt with for the time being, in the same way as number and numerical standards enable us to reduce the con- tinuous and ever changing world of matter and motion to portions which can be considered apart. Thus rules of law can no more give us a classifica- 80 CHAP. FIRST BOOK OF JURISPRUDENCE Classical or received divisions: impersonal and per- sonal duties or rights. tion of human acts or affairs than the rules of arithmetic can give us a classification of numerable things. In scholastic terms, the divisions of law are not material but formal. Practising lawyers do not concern themselves much with divisions of a high order of generality. They have to think, in the first place, of speedy and convenient reference, and the working arrangements of professional literature are made accordingly. So the types in a printing office are arranged not in order to illustrate the relations of spoken sounds or the history of the alphabet, but so that the compositor may lay his hand most readily on the letters which are oftenest wanted. Ambitious writers have sometimes gone to work as if it were possible to reduce the whole contents of a legal system to a sort of classified catalogue where there would be no repetitions or cross references, and the classification would explain itself. Ambition on that scale is destined to dis- appointment by the nature of things. Some general divisions in the science of law have been made classical by the method adopted in the Institutes of Justinian, and by the subsequent development given to the Eoman ideas by com- mentators and modern jurists. One such division, which has been made explicitly prominent only in IV 81 DIVISIONS OF LAW recent times, is now commonly marked by the terms in rem and in personam. Some duties and rights consist in a claim of one certain person upon another; the duty and the correlated right are alike determinate. In these cases the duties and rights are said by modern writers to be in personam. Other duties and rights do not import any such definite correlation. When we put ourselves in the position of duty, we find no certain person having the right; when we put ourselves in the position of right, we find no certain person owing the duty. These impersonal rights and duties, regarding all one's fellow-subjects or a class of them, are said to be in rem. We have already seen something of this in endeavouring to fix the conception of legal right. The reason why we cannot well use the English adjectives "real" and "personal" for this purpose is that they are already appropriated to special technical uses with which this would clash. It would be free from objection, however, to speak of personal and impersonal duties or rights. The most obvious and typical example of an Transition . . from in- event creating rights in personam, is a contract, rem to in John and Peter agree that John shall sell his house Contract! to Peter on certain terms. This gives John and o^ersMp. Peter certain rights against each other; they are G 82 FIRST BOOK OF JURISPRUDENCE chap. bound to one another by a tie of mutual claims existing between them and between them only. This definite relation of claim and duty was called an obligation by the Eoman lawyers, and is still so called everywhere, save that in English-speaking countries an unfortunate habit has arisen of using "obligation" in a lax manner as co-extensive with duties of every kind.1 Now let Peter pay John the purchase money, and John do all proper acts for completing the sale. Suppose, to simplify the illustration, that John has received the money in coin, and Peter has entered into the house and occupies it. Peter is owner of the house, and John and all other persons are under the duty of respect- ing his rights as owner, that is, of abstaining from trespass and the like. The money is John's, and Peter and all other persons must respect John's owner- ship of the money by not stealing it or otherwise meddling with it in any unauthorised way. These rights have no determinate corresponding duties, only the general duty of all men not to trespass, steal, and so forth. That duty in turn is not 1 In English law the word formerly had a much more restricted meaning, namely the special kind of contract also called a bond. But the English name "bond" is now always or almost always used for this, and it is convenient to restore "obligation" to its Roman sense, for which there is no synonym. iv DIVISIONS OF LAW 83 correlated to Peter's or John's rights more than to those of any other owner. Dominium is the Eoman term for the rights of an owner against all the world: and the contrast of dominium and ohligatio is the nearest approach that can be made, in classical Eoman language, to the distinction marked by the modern terms in rem and in 'personam. Let us now take a further step. Robert, a obligation stranger, wantonly or out of spite breaks a window doing™ & in Peter's house. He has disregarded the general duty of respecting other men's property, and he incurs a new duty, that of making compensation to Peter. It may be that he is also liable to fine or imprisonment for the disturbance of public order involved in his wrongful act, but that is a distinct and different matter. On the other side, Peter has a personal and determined right against Eobert. A legal bond of liability and claim has been created; that is to say, there is an obligation. If Peter comes out of the house at the moment when Eobert breaks the window, loses his temper, and knocks down Eobert, he has in turn broken in Eobert's person the general duty of not assaulting one's fellow-subjects: for the right of action he has acquired against Eobert is a right to redress by lawful means only, of which means knocking down 84 FIRST BOOK OF JURISPRUDENCE chap. the wrong-doer on the spot is not one in this ease. Eobert may not be held entitled to much compensa- tion, but he is entitled to some. Here is yet another obligation, the liability being on Peter and the claim with Eobert; and it results from a breach of the most general kind of duty, a duty correspond- ing to a so-called "primitive" right. Personal Obligation does not however include the whole duties other than of duties and rights in 'personam. There are personal relations recognised by law and having important legal consequences, but outside the legal conception of obligation. Peter, let us assume, lives in the house with his wife Joan, and they have children. Peter and Joan owe duties to one another which they cannot owe to any one else; and the same may be said (omitting minor distinc- tions in this place) of the duties existing between Peter and his children. But these duties are not reckoned as obligations: for they cannot be ex- pressed as definite claims, and their performance cannot be reduced to any definite measure. They are fully discharged only when the relation out of which they arise has come to an end: in the case of marriage by death, or, in systems of law where divorce is allowed, by divorce. In the case of parental relations the normal mode of determination IV 85 DIVISIONS OF LAW is the attainment of full age by the child (which, however, often has not that effect in archaic systems, and had not in the classical Eoman law), to which many systems add marriage in the case of daughters, and adoption into another family. Eelations of this kind, moreover, are intimately associated with moral duties which are not capable of legal definition and perhaps not of precise de- finition at all. Lying thus on the borderland of morality and law, they give rise in law to duties and rights which resemble obligations in being personal, but differ from obligations, and resemble duties and rights in rem, in not being capable of exhaustion by definite assignable acts, or by any number of such acts. The resulting duties are determinate as to persons, but not determinate as to contents. Duties which are impersonal or in rem answer, as we have seen, partly to particular and acquired rights of other persons, such as owners, partly to the so-called primitive rights which are universal. They may be duties to all one's fellow-subjects or only to some of them. Impersonal duties and rights are always attached Creation of duties and by rules of law to some condition or state of facts, rights by will of Whether the conditions are to any extent under the parties. 86 FIRST BOOK OF JURISPRUDENCE chap. control of the parties or not, the legal consequences are what the law makes them. By the mere fact of being a citizen or subject one is entitled to a certain measure of personal security, freedom to follow one's lawful calling, and so forth. By the fact of becoming an owner one acquires the rights and faculties of an owner, such as the law declares them to be. One may choose to avail oneself of them or not, but one cannot alter them. If one could, one would be able to impose new duties on one's fellow-citizens without their consent, in fact to make new law for one's own benefit. But this would contradict the fundamental purpose of law and justice. It is exactly what they aim at preventing. Personal Personal duties and rights, on the other hand, duties . . dependent may not only arise irom acts or the parties, but be parties. °f directly created and determined by their will. The parties to an agreement not only confer and assume duties by their voluntary act, but by the same act prescribe what the duties shall be. The same remark applies to transactions in- volving agreement and obligation, though not usually included under the name of contract, such as the creation of trusts in English law. The parties can make a law for themselves just because their dispositions are personal to themselves, and do IV 87 DIVISIONS OF LAW not impose or affect to impose any new duties on their fellow-subjects at large. Personal duties are also prescribed by rules of Personal duties law and attached to acts or relations of parties, prescribed by law. Sometimes they are contemplated by the parties, though not within their control, and sometimes not. Thus in the case of marriage and other family relations the legal consequences are contemplated and accepted, but cannot be framed and varied at the will of the parties like the duties created by a commercial contract.1 In many cases where duties resembling those created by contract are imposed by law (where in Eoman terms there is obligation quasi ex contractu), they are such as it is considered that a just man, on being fully informed of the facts, would in the circumstances willingly assume. The most familiar example in this kind is the duty of returning a payment made by mistake. Where obligation arises from a merely wrongful act, the liability is of course not desired by the wrong-doer, and is contemplated, if at all, as an evil (from his point of view) to be endured only so far as it cannot be avoided. 1 This does not apply to incidental dispositions of property such as are made by marriage settlements. These may well be treated, as in our law they are, as matters of agreement largely within the control of the parties. FIRST BOOK OF JURISPRUDENCE chap. Liability by breach of agree- ment. We have not yet mentioned another way in which personal duties and liabilities arise, namely from the breach of antecedent personal duties created by agreement. Every such breach of duty is in some sense wrongful; and it is contrary to the original inten- tion of the parties. Agreements are made in order to be performed, not to be broken. It is even possible to regard the breach of a promise as a wrong in the strictest sense, a trespass or deceit,1 Still there is a good deal of difference. Duties under agreement may easily be broken without any wrongful intention. Performance may be prevented by misadventure (which is not always an excuse even if the party be not in fault), or there may be honest and serious diversity of opinion as to what is really due. Then, although parties do not desire their agreements to be broken, it would be incorrect to say that they never contemplated it; for they often make special provision for such an event, and even fix beforehand the amount or scale of the compensation to be paid. Thus it appears that the duty of compensation in case of non-performance is fairly regarded as incident and supplementary to the primary duty of performance. In practice and 1 This is fully exemplified in the history of the Common Law. IV 89 DIVISIONS OF LAW practical exposition it would not be convenient, indeed it would hardly be possible, to separate the legal results of breach of contract from the rules determining what are the duties and rights of the parties before any breach. From the point of view of a modern lawyer import- ance of conversant with modern habits of life and business, distinction between it may well seem that the distinction between self-pre- scribed duties and rights prescribed by the parties them- and other selves and those prescribed by the law is really of greater importance than that which looks only to their impersonal or personal character. The relations recognised by law can be divided, with no great apparent inequality as to quantity or value in human affairs, into those which arise from contract (or voluntary dispositions analogous to contract) and those which are independent of contract. And the distinction is at first sight so clear as to seem unmistakable. But the history of the law shows us that an absolutely clear-cut division is not to be had, even so, between the facts and relations to which our rules apply. The description of legal duties and rights as Roman . . . meaning of being m rem- or in personam is usually and correctly -action." said to be unauthorised by classical Latin usage. Eoman lawyers spoke of "actiones," not "iura," 90 FIRST BOOK OF JURISPRUDENCE chap. being in rem or in personam. But it should be remembered that in Eoman usage u action " included what we now call a " right of action," any determin- ate claim to some form of legal redress. "Action" was defined as a man's right of obtaining by process of law what is due to him, not as the process itself. "Nihil aliud est actio quam ins quod sibi debetur iudicio persequendi."1 Hence the modern usage is not so wide apart from the Eoman as it appears at first sight to be. Public and A classical division accepted by almost all Private Law. systematic writers is that of Public and Private Law. No rule of law can be said, in the last resort, to exist merely for the benefit of the State or merely for the benefit of the individual. But some departments of legal rules have regard in the first instance to the protection and interests of the commonwealth, others to those of its individual members. In the former case the public interest is im- mediate; it can be directly represented by the proper officers of the State, and vindicated by them in the name of the State, or of its titular head: in the latter the interest of the individuals whose rights are affected comes in the first line; 1 Celsus, D. 44, 7, de obi. et act. 51. iv DIVISIONS OF LAW 91 it is protected by the law, but the parties interested are left to set the law in motion. Eules of private law may be said to have remained in a stage where all rules of law probably were in remote times: that is to say, the State provides judgment and justice, but only on the request and action of the individual citizen: those who desire judgment must come and ask for it. Accordingly the special field of such rules is that part of human affairs in which individual interests predominate, and are likely to be asserted on the whole with sufficient vigour, and moreover no public harm is an obvious or necessary consequence of parties not caring to assert their rights in particular cases. In the law of contract and its various commercial developments these conditions are most fully satisfied; though even here considerations of "public policy," to use the accustomed English term, are by no means absent. In the law of family relations and of property motives of legitimate private interest have a consider- able part, but they are not so uniformly operative that they can be treated as adequately guarding the interest of the commonwealth. Hence we find that theft and certain other forms of misappropriation and fraud, and even certain kinds of breach of contract, are punishable as public offences. The 92 FIRST BOOK OF JURISPRUDENCE chap. general security of property has to be considered as well as the chances of restitution in each case, which often are so slender that the person robbed or defrauded has no sufficient motive of self-interest for vindicating the law. When we come to bodily safety, the public interest balances, or in some cases even outweighs, the private. Wrongs of violence are in all civilised legal systems dealt with as offences against the commonwealth, in addition to the rights to redress which may be conferred on the individual injured. Incorporeal personal wrongs, such as defamation, afford a kind of neutral ground where the rights of the State and of individuals have about equally free play in modern law. There fall more specially under rules of public law the duties and powers of different authorities in the State, making up what is usually known as the law of the Constitution; also the special bodies of law governing the armed forces of the State, and the administration of its other departments; laws regulating particular trades and undertakings in the interest of public health or safety; and in short all State enterprise and all active interference of the State with the enterprises of private men. We say active interference. For there are many dispositions in particular departments of private IV 93 DIVISIONS OF LAW law which are founded on reasons of public policy, but are left for the parties who may profit or be relieved by them to bring to the notice of the Courts. Of this kind are certain special restrictions on freedom of contract. In countries under the common law the State does not interfere of its own motion to prevent an agreement from being enforced on the ground that it is "in restraint of trade." On the other hand there are many legislative enactments which expressly or by necessary impli- cation forbid certain kinds of contracts to be made. Such enactments appear to belong to public law, though it is often convenient or necessary to consider them in connection with the rules of private law whose usual operation is excluded or limited by them. To public law, too, belong all the minor penal enactments incident to constitutional and depart- mental legislation. But public law does not even here hold the field alone, for the same legislation which creates new public duties and imposes penalties may well, under specified conditions, also confer new rights to redress on individuals either expressly or as a consequence of principles recog- nised by the courts. The extent and effect of any such principles 94 FIRST BOOK OF JURISPRUDENCE chap. cannot be laid down beforehand: it depends on the forms, methods, and history of the particular system of law which is being administered. In our law the violation of a public duty may often give a right of action to a citizen who has thereby suffered damage, but this is by no means an universal or necessary result.1 It will be seen therefore that the topics of public and private law are by no means mutually exclusive. On the contrary their application over- laps with regard to a large proportion of the whole mass of acts and events capable of having legal consequences. The state Sometimes the distinction between public and as a party. private law is made to turn on the State being or not being a party to the act or proceeding which is being considered. Only dealings between subject and subject, it is said, form the province of private law. But this does not seem quite exact: unless indeed we adopt the view, which has already been rejected, that the State is wholly above law and legal justice, and neither duties nor rights can properly be ascribed to it. Many valuable things both immovable and movable are held and em- ployed for the public service: palaces, museums, 1 Ward v. Hobbs (1878), 4 App. Ca. 13. IV 95 DIVISIONS OF LAW public offices, fortifications, ships of war, and so forth; in some countries railways and all the various furniture and appurtenances of these. Whether they are held in the name of the State itself, or of the head of the State, or of individual officers of the State or persons acting by their direction, is a matter of detail which must depend on the laws and usages of every State, and may be deter- mined by highly technical reasons. In substance the State is and must be, in every civilised community, a great owner of almost every kind of object. Now the rights attaching to the State in this respect, or to the nominal owners who hold on the State's behalf, need not differ from those of any private owner, and in English-speaking countries they do not. They can be and are dealt with by the ordinary courts in the same way as the rights of any citizen, and according to the ordinary rules of the law of property for the preservation and manage- ment of the kind of property which may be in question. Again many persons have to be employed, and agreements to be made with them; and these transactions are judged, so far as necessary, by the ordinary rules of the law of contract, Now the rules mentioned not only belong to private law but are at its centre; they are the most obvious examples of 96 FIRST BOOK OF JURISPRUDENCE CHAr. what private law includes. It would be strange to say that they become rules of public law because the property and undertakings in question are public. The true view seems to be that the State, as an owner and otherwise, can make use of the rules of private law, and become as it were a citizen for the nonce, though ultimately for public purposes. Use of Sometimes the law of nations is brought under u public" and ?the head of public law; this is plausible according "private" *~ by writers to the test of the State being a party, which, how- cm Inter- national ever, we have not accepted. It is enough to say Law. here that the duties of independent States to one another, whatever may be the extent of their analogy to legal duties, are not legal duties or the subject of legal rules in the sense now under consideration. On the other hand there is in modern law a body of principles and rules by which the courts are guided in deciding, on occasion, how far they are bound to take notice and make applica- tion of rules belonging to foreign systems of law; as where different stages of a transaction have taken place in different jurisdictions. These rules apply largely to matters of private law, and the principles are not confined to any particular local system. Differences of opinion exist among the learned, and the opinions of different writers or iv DIVISIONS OF LAW 97 schools may prevail with the tribunals of different countries: but it is recognised on all hands that uniformity is desirable, and is to be aimed at as far as possible. Hence the sum of such rules is now commonly called Private International Law. This term has been much discussed, and by some competent persons vehemently disapproved,1 but it would not be to the present purpose to enter upon the controversy, which assumes an advanced know- ledge of law. What is here sought is merely to make a common modern term intelligible. Another classical division adopted by the Roman division Institutes of Justinian from Gaius is that which of law regarding treats the whole body of law (that is, legal rules) Persons, 9 Things, as relating either to Persons, Things, or Actions." Actions. "Omne autem ius quo utirnur vel ad personas pertinet vel ad res vel ad actiones." To a certain extent this division coincides with the division already noted of Substantive and Adjective law. The law of Actions is the body of rules determining the modes and processes of legal redress; it is equivalent to what modern writers call the law of Procedure, but with some addition of the law of Eemedies: for, as pointed out above, 1 See Holland, Jurisjyrudcnce, ch. xviii. 2 Cp. Maine, Early Law and Custom, ch. xi., and Dr. Moyle's introduction to the first book of the Institutes. H 98 FIRST BOOK OF JURISPRUDENCE chap. the Eomans hardly distinguished the right to a certain kind of redress from the process of obtaining it. So far there is nothing calling for fresh ex- planation; it is to be remembered, however, that, as Maine has pointed out, the distinction of substantive from adjective law must in ancient times have involved a much higher effort of abstraction than we can easily realise now. When we consider the further division of substantive law into law of Persons and law of Things, we are struck by the fact that the division, though not in terms confined to private law, has in fact been so confined by the usage of both ancient and modern expounders. It will appear shortly that there is good reason for this. Practical Like the other divisions we have been consider- ed the ing, this is a division of legal rules, not of the facts division. • -i i it to which they apply. It seems to be closely related to the practical questions which arise or may arise when a man feels aggrieved and thinks of seeking redress. Persons between whom there is a dispute; a thing which is the subject of dispute; some form of action for resolving the dispute by process of law: these are the common elements of litigation between parties. This evidently does not apply to crimes, or to all private wrongs; but the applica- IV 99 DIVISIONS OF LAW tion is quite wide enough to support a classification which in truth is only a rough one. Do the persons concerned fall under any rules of law limiting or specially modifying their capacity or liability? What rights are recognised by law with regard to the subject-matter in question? Can it be owned, or exclusively enjoyed? One of the parties, perhaps, claims by sale or bequest: could the thing be given by will? could the sale invest him with the rights he claims to exercise? What, on the whole, is the resulting duty or liability? Then, supposing the rights of the parties to be settled, what are the available remedies? What is the active form, so to speak, of the legal result? or in English legal phrase, what is the cause of action? Can compensation be recovered in money, or is there any other, and what form of redress? The distinction between law relating to persons Persons are prima and law relating to things may seem to the modern facie equal in modern, reader, perhaps, not to be a real one, or not one but not in of the first importance. For things (whatever we iTw!6n' include in the conception of a thing, which we are not yet considering) can plainly have no place in legal rules except in connection with the duties and rights of persons. The material world as such is absolutely irrelevant to jurisprudence. Every: 100 FIRST BOOK OF JURISPRUDENCE ciiAr. rule of law must to this extent have to do with persons. And in modern Western law we find that one person is very like another, and differences between persons tend to be reduced to a minimum. In fact we can nowadays be tempted to regard the law of persons as identical with the law of family relations, in which the irreducible differences of persons, as we may call them, resulting from the conditions of sex and age, are of necessity most prominent. But in archaic societies it is not at all to be assumed that persons are alike. Nowadays we presume every man to have the full legal rights of a citizen in the absence of apparent reason to the contrary. If any man is not capable of buying and selling, suing and being sued, in his own name and on his own responsibility, there must be something exceptional about him. Undischarged bankrupts, for example, are not a very large proportion of our adult population. But at Borne in the time of Cicero or even of the Antonines a prudent man could not presume anything about a stranger's legal capacities. A person of respectable appearance who spoke Latin was not necessarily even free. We know that serious doubt whether a man was free or not was quite possible. If he was a slave, he had no legal rights; he was not a person at all in IV 101 DIVISIONS OF LAW the eye of the law. If he was free, he might still be a freedman, or a foreigner (not to speak of minuter distinctions). If he was a Eoman citizen he might still have a father living, and be under that father's power; again, he might have been emancipated or adopted. He might belong, in short, to any one of several conditions of men, each having its distinct and proper measure of legal capacities. For a Eoman of the Eepublic, and even of the Empire down to Justinian's time and later, the question, "With what kind of person have I to do?" had a very clear and prominent legal meaning, and no question could be more practical. Modern authors have not arrived at any general agreement either as to the precise meaning of the law relating to persons in the Eoman classification (if indeed the meaning ever was precise), or as to what topics are conveniently included under such a head at the present day. There is however a general tendency to regard the law of persons as supplementary to the general body of legal rules. "We are apt to ask first, not what are the respective capacities of the parties in the matter in hand, but what are the rights of the matter assuming all parties to be of full ability. Then we consider, 102 FIRST BOOK OF JURISPRUDENCE chap. as a possible accident in the case, whether any one is under any disability, or to any extent exempt from responsibility, by reason of some special personal condition. In books meant for practical use this method is commonly followed, the dis- abilities and immunities of infants, married women, and so forth, being explained with reference to the department of law or class of transactions which is the subject of exposition. Exposition Another principle of division frankly based on under General convenience of exposition is that by which, in and Special Parts. dealing either with a whole body of law or with a substantial department thereof, those principles and rules which are found in all or most portions of the subject, so that they may be said to run through it, are disposed of before the several branches are entered upon. Such principles and rules may relate to the nature of duties and rights in themselves, to the conditions of their origin, transmission, and extinction (title, as we have already used the word), or to the remedies applicable. The setting forth of these matters in advance, so as to avoid repetitions and awkward digressions in the subsequent detailed treatment, is called, after the modern German usage, the General Part of the work in hand. In the IV 103 DIVISIONS OF LAW Special Part the several topics are dealt with in order, and, the general principles having already been stated, only those rules are discussed which are peculiar to the subdivision in hand, or are in some peculiar way modified in their applica- tion to its contents. Thus Savigny's great work on Eoman law is only the "General Part" of his projected system. Well framed legislative acts on large subjects usually proceed in some such manner from the general to the special. Thus the Indian Penal Code has chapters of "General Explanations," "Punishments," and "General Ex- ceptions" (that is, the causes for which acts otherwise criminal are justified or excused), which come before the definitions of particular offences. The "preliminary" part of Sir James Stephen's Digest of the (English) Criminal Law is a well marked General Part. Again the first six chapters of the Indian Contract Act contain what a Con- tinental writer would call the General Part of the law of contract, namely, rules of law by which the formation, validity, and effect of all kinds of contracts alike are governed in British India. The other chapters, which deal with sale, agency, and other species of contracts, might be called the Special Part of the Act. Notwithstanding the 104 FIRST BOOK OF JURISPRUDENCE chap, iv obvious advantages of this method, it has only gradually and of late years come into use among English lawyers; I do not say in name, which is of little moment, but in substance. The late Mr. Leake's excellent and accurate Digest of the Principles of the Law of Contracts is, however, a complete and systematic General Part for that subject. Where a wide field has to be covered, the method may well be applied on a smaller scale to subdivisions within the general scheme. It is hardly needful to remark that it is by no means necessarily confined to legal exposition; but it is specially appropriate for legal writings, including legislation, by reason of the number of technical ideas and rules of various degrees of generality which, in working out any topic, have to be constantly assumed as within the reader's knowledge. CHAPTEE V PERSONS Law necessarily deals with duties and rights of Relation of persons persons. Those duties and rights are determined to things, by the relations of persons to each other, depending partly on their acts and partly on events indepen- dent of them, and connecting those persons either immediately or through the medium of what we may call, provisionally and vaguely, the possible objects of common or conflicting interest. Using "things" as a compendious equivalent for this last phrase, we may say that persons are brought, by the operation of acts and events, into relations with things and with one another: that is to say, relations capable of begetting duties, rights, and claims; for the science of law regards none others. Claims are satisfied by Remedies, the various forms of legal redress: and the benefit of the appropriate:; 106 FIRST BOOK OF JURISPRUDENCE ciiai-. remedy, the "fruits of judgment" as we often say, is meted out according to the rules of Procedure. From this point of view we get another way of looking at the division of law as relating to Persons, Things, and Actions which we lately noticed. It is not proposed however to consider here whether this, or something like it, may have been in the mind of the Eoman lawyers, though they did not distinguish the general ideas from the special forms assumed by them in the law of Rome. We shall proceed in our own fashion to use this clue for the better apprehension of some of the leading ideas of jurisprudence. It seems a convenient course to start from the following questions as being necessary and elementary. Who and what are the subjects1 of ,duties? and how brought into relation with the possible matter of duties? Of what does that matter consist? How are the data for determining the existence of duties ascertained; and, when ascertained, how are the duties enforced? Further, there is after all these a question of great practical importance, namely: In what forms is the law made known? This last one, however, does not seem to admit of any 1 The word is here used, of course, in the logical, not the ^political sense. V 107 PERSONS answer in general terms that can be of much practical benefit: and we shall deal with it apart, and with special reference to the authorities of the Common Law, in the second part of this work. In like manner it is not assumed that the other questions all stand on the same line in this regard. Eules of evidence and procedure are largely deter- mined by national and historical conditions which, though not really arbitrary, cannot be accounted for by universal principles. First then we have to inquire, not what were what is a -I • • t-> i Person? the capacities of persons m Eoman law, or what they are in English law7, but what a person is; that is, what are the necessary marks of a person in law. Duties and rights belong to persons. Persons are the subjects of rights and duties: and, as the subject of a right, a person is the object of the correlative duty, and conversely. The sub- ject of a right has been called by Professor Holland the person of inherence, the subject of a duty the person of incidence. "Entitled" and " bound" are the terms in common use in English, and for most purposes they seem adequate. Every full citizen is a person: other human beings, namely subjects who are not citizens, may be persons. But not every human being is necessarily a person, for a 108 CHAP. FIRST BOOK OF JURISPRUDENCE person is capable of rights and duties, and there may well be human beings having no legal rights, as was the case with slaves in ancient law.1 Doubtless any such institution is repugnant to the spirit of modern laws, and, since the abolition of slavery in America, we can hardly find an example in Western civilised countries: but we are now examining what is conceivable and possible, not what is desirable or now prevalent. A person is such, not because he is human, but because rights and duties are ascribed to him. The person is the legal subject or substance of which rights and duties are attributes. An individual human being, considered as having such attributes, is what lawyers call a natural person. Natural Is not a person, then, simply a human being and arti- ficial considered as capable of rights and duties? No, for persons. . . there are persons m law which are not individual human beings. Not only man is social, but within a society men act collectively, presenting a solid front, so to speak, to society at large. Groups, permanent or temporary, behave as individuals. There arise in this manner collective capacities and responsibilities which the law personifies for con- 1 The Roman lawyers did sometimes, but rarely, use persona so as to include slaves: Gai. i. § 48, followed by I. i. 8, see Moyle's Inst. p. 87, 2nd. ed. V 109 PERSONS venience. We have artificial persons, or, as we say in the Common Law, corporations. Not that it is an affair of mere convenience. It would seem that in the history of institutions collective rights and responsibilities were antecedent to those of the individual: and under archaic systems of law, as in Hindu and to some extent in Slavonic society, we can still find the individual hardly disengaged from the bonds of the family. How- ever that may be, we constantly need in modern law the conception of an artificial person, a subject of duties and rights which is represented by one or more natural persons (generally, not necessarily, by more than one), but does not coincide with them. It has a continuous legal existence not necessarily depending • on any natural life; this legal continuity answers to some real continuity of public functions, or of special purposes recog- nised as having public utility, or of some lawful common interest of the natural persons concerned.1 The action of an artificial person, be it observed, is not a merely legal or technical one. We make use of it every day for the common purposes of 1 It would be extremely interesting to trace the history of the Roman idea of universitas and of its revival in European and English medieval law. Such a task is of course beyond the scope of the present undertaking. J 110 FIRST BOOK OF JURISPRUDENCE chap. life, and in applications going far beyond those which courts of justice admit. We ascribe a single will and responsibility to the Ministry of the day, to voluntary associations and (what perhaps is most curious of all) to a newspaper. In some cases the artificial person of common speech may be, or may approximately coincide with, an arti- ficial person in law too. Thus in England a newspaper may possibly belong (and nowadays often does) to a company incorporated under the Companies Acts; and railway companies are with- out exception, I believe, corporations. In other cases, as that of the Ministry, there can be no question of collective legal personality. But we never trouble ourselves, for extra-legal purposes, to think of this. Nations In political discourse we so constantly personify personified. nations that we almost forget the artificial character of our language: and yet the unrestrained use of metaphor in politics is quite capable of grave consequences. The essential truth involved in speaking of France or the United States as a person is that the governors of a civilised nation expect the nation to have the benefit of engage- ments made with their predecessors, and in turn are expected by the governments of other nations v PERSONS 111 to answer for the public acts of their predecessors as well as for their own. Without the corporate idea of "perpetual succession" and continuous responsibility there could be no stability or con- fidence in dealings between nations. Whatever goes beyond this may run into dangerous fancies; as when the results of social and economic con- ditions in the foreign enterprises, say of Eussians or Englishmen, are set down to a national passion of enmity, or design of deliberate ambition, like those with which we are familiar in individuals. To charge or credit "France" or u Austria" with particular habits or dispositions is, at best, to make a statement about the traditions of policy which are known by experience to prevail in the public affairs of that country: at worst it is to make wide assertions about the collective character of a multitude of people, including many and diverse- types, and far too numerous for any one man to be even superficially acquainted with at first hand. Sometimes countries and populations are personified in this manner which contain internal elements of extreme diversity, and have not or have never had any true national unity; as, on a great scale, India, and, on a smaller one, Ireland. In such a case the metaphor is a degree more remote, and 112 FIRST BOOK OF JURISPRUDENCE chap. the danger of fallacy (commonly by taking some part or parts for the whole) is greater. But these matters lie beyond the province of law. Corpora- In the Common Law we call artificial persons tions. corporations. Their existence is necessary to avoid the tedious and cumbrous processes which would otherwise be required for the carrying on of joint undertakings in which a large number of citizens are or may be interested. It is a natural follow- ing out of the same reasons to limit by law, as is done in England, the number of persons who may carry on business jointly without incorporation. Firms. We have in an ordinary partnership firm an example of artificial personality lying just on the borders of social or commercial convention and law. The firm is a person by mercantile usage: it is always and everywhere treated in business accounts, correspondence, and so forth, as a person distinct from the individual partners. In English-speaking countries it is quite common for a firm to go on using a name which has long ceased to be borne by any individual partner; though elsewhere this is not generally allowed. As to making the firm a person, legal usage is not uniform. In Scottish law, and, I believe, on the Continent of Europe generally the firm is recognised as a person: in v PERSONS 113 the Common Law it is not. In classical Roman law we are hardly within sight of such a question, for the prevailing idea is still the management of common property, and the idea of joint interest in a joint enterprise is only beginning to emerge. The greatest of artificial persons, politically The state, speaking, is the State. But it depends on the legal institutions and forms of every commonwealth whether and how far the State or its titular head is officially treated as an artificial person. In England we now say that the Crown is a corpora- tion: it was certainly not so when the king's peace died with him, and "every man that could forthwith robbed another." 1 We have next to speak of the legal capacities Legal capacities. of persons. They tend to equality in modern systems, as we said above,2 but some inequality remains and must remain. First as to natural persons. There are physical Of natural persons: conditions necessarily affecting the powers of the physical individual to manage and be answerable for his own affairs. Normally, we all have to pass through tender age and adolescence, or, in the Common Law term for the whole period before full age, infancy. When a man or woman is 1 A. S. Chron. anno 1135. 2 P. 100. I 114 FIRST BOOK OF JURISPRUDENCE chap. of full age must be ascertained by the positive rules of the system of law in question. The prescribed age has varied in different systems from eighteen years (or, exceptionally, less) to twenty-five, which I think is the superior ex- treme. The Common Law term of twenty-one years is a reasonable mean. Full age may be fixed at different periods for different purposes: thus ability to marry without the consent of one's parents, if living, may be postponed (as it is in Trance) to a later age than general ability to manage one's affairs. Abnormally, people may be disabled by insanity at any age; the ascer- tainment of insanity, its effects in excluding responsibility, and the administrative measures necessary or proper for preserving the property of insane persons and checking abuses, have to be provided for by every system of law in its own way. So far as general principles are involved they belong mainly to public law. Causes of Another class of personal distinctions rests on in "ex and the constitution of the family. Such distinctions relations. are> in Part> ultimately grounded on the physical difference of sex, and on moral differences assumed by the law to accompany it. In private law married women undergo some loss of legal capacity v PERSONS 115 in all or almost all systems of law,1 while in some systems all women are or have been under disabilities. In public law, and in every known system so far as public law goes, all women are under some disabilities and are exempt from some duties, that of military service for example, where it exists as a general duty of citizens. We find, on the other hand, variations of personal capacity derived from family relations which belong only to some particular type or stage of family institutions. The subjection of adults to paternal power among Eoman citizens, the limited capacities of a member of a Hindu "joint family," may be taken as examples. Further, there are special personal disqualifica- Special ,. • disqualifi- tions or diminutions ot legal capacity m every cations, system of law. Some of these have a penal othen^se. character, or at least savour of preventive and compulsory discipline: such are the disabilities of convicts, bankrupts, and (in some systems) declared spendthrifts. Others are attached to certain public offices or positions for reasons of 1 The prohibition of bigamy, which applies to married men as well as women in modern law, has never been reckoned as a point of legal incapacity ; by marriage the original capacity is not de- stroyed but fulfilled. So no one would say that a sitting member of Parliament had lost his capacity of being elected. 116 FIRST BOOK OF JURISPRUDENCE chap. policy not dishonourable to the individual. Such are in England the disqualifications of clergymen, and of persons holding various offices, to sit in Parliament. In modern law these disqualifications (or exemptions, which no less occur) are almost or wholly confined to public law.1 But in the Middle Ages a man could renounce his whole legal personality, public and private, become as it was called "civilly dead/' by entering one of the regular orders of religion, and this may possibly be so still in some of the jurisdictions where the Eoman Catholic religion is exclusively or principally recognised by the State, and its monastic and other societies of professed religious persons have an official standing. We are not aware that the institution survives in any of the greater States of Europe. Artificial Passing to artificial persons we find that their jDersons: their in- capacities are not subject to most of the causes capacities . different of variation which affect those of natural persons. from those . of natural Obviously a corporation cannot be an infant or peii,ons. insane> it mav ]3e insolvent; it is the common experience of our own time that, as an idle rhymer 1 This would seem to be the grain of truth in the strange view taken by those writers who have rejected the distinction between Public and Private Law, and treated Public Law as a branch of the Law of Persons. v PERSONS 117 once wrote, "winding-up cometh to limited things." For reasons of practical convenience, however, in- solvent corporations are, in England at any rate, dealt with by special forms of procedure differing from those used in cases of individual bankruptcy. Corporate capacity, on the other hand, is subject by its nature to restraining conditions from which the acts of natural persons are free. First, an artificial person can act only by means Limitation by need of of some natural person or persons having authority agency, to represent it, "actorem sive syndicum" as the Eomans said; a railway company must act through its board of directors, and the like. Hence a corporation can do nothing which cannot be done by an agent. The full importance of this cannot be shown here, for the exposition would have to assume some detailed knowledge of law. But it is a matter of universal principle that there can be no real agency to do an obviously unlawful act. Hence follows a restriction on corporate responsibility which must be specially noted. Secondly, then, a corporation cannot commit corpora- n • i-i to tions, how crimes, tor it cannot authorise them. It the mem- far liable bers or representatives of a corporation affected ±or ^1011o;? to authorise a criminal act in its name, they would merely make themselves liable as individuals. 118 FIRST BOOK OF JURISPRUDENCE chap. I To put an extreme case, if the East India Company had rebelled agaiDst the Crown, not the Company but the directors would have been guilty of high treason. But a corporation may have positive duties imposed on it by public law, and may incur penalties (though not criminal punishment in the strict sense) by failure or neglect in that respect. Such duties may be directly imposed on a corpora- tion in connection with the special purposes for which it is constituted, or as an equivalent for privileges granted by the State; or the corporation may incur them by carrying on a trade or business to which they are attached by the general law. Further, a corporation may be liable for civil wrongs committed by its agents in the course of their employment, just as a natural person may be; and on principle there appears to be no reason why, consistently with the general idea of artificial personality, it should not be liable to the same extent. This is certainly the doctrine of the Common Law, though in some points it is not yet wholly settled in England. Thirdly, many corporations are created expressly for special purposes, and their powers are limited to the execution of those purposes, and what is reasonably incident thereto. This is the case with v PERSONS 119 most corporations in modern times, and there has even been a tendency to suppose the principle universal. Practically such cases almost always fall under some special legislative rule: but the interpretation of such rules has been doubtful enough to leave room for controversies of principle. A corporation has distinct rights and duties not Corporate duties and only as against persons outside it, but as against its rights: rrn • t t formation own members. They can be its creditors or debtors. 0f corpo- rations. On the other hand its debts and claims against other persons are not the same as theirs. "Si quis universitati debetur, singulis non debetur, nee quod debet imiversitas singuli debent," 1 This is a necessary consequence of the corporation being a distinct person in law. How far the individual members can derive profit from corporate property or business, or be liable to contribute to the pay- ment of corporate debts, has to be determined by the particular system of law and the constitution of the particular corporation. The formation of cor- porations, again, is a matter of positive regulation; though it may be taken as a principle of general jurisprudence that the authority of the State is requisite. Such authority may be conferred once for all, as regards a class of corporations, by general 1 Ulpian, D. 3, 4, quod euiuscunque universitatis, 7, § 1. 120 FIRST BOOK OF JURISPRUDENCE chap, v enabling legislation, and this has been done in England by the Companies Acts. Municipal cor- porations and a limited number of trade gilds appear to have been the only kinds of corporations known to the classical Eoman law.1 Nowadays the import- ance and necessity of corporations for carrying on the affairs of modern life meets us at every turn. 1 D. cod. tit. 1. CHAPTEE VI THINGS, EVENTS, AND ACTS The question what is a Thing is much less simple Things as subject - than the question what is a Person. Eoman law matter of rights and will tell us that some things are corporeal and duties, others incorporeal; the Common Law will tell us that some things are in possession and others in action. The Eoman division is easier on a first view; the English one is no doubt subtler, less clearly defined, and more difficult for beginners to grasp. It is therefore commonly assumed that the Eoman conception is rational and the English is not. We must have a little patience before we are ready to form an opinion. A thing is, in law, some possible matter of rights and duties conceived as a whole and apart from all others, just as, in the world of common experience, whatever can be separately perceived is a thing. myho aojfciaanHJSiHfif £0 ^iooa xshii est •spefqo p3LT9^i3iu ioao Snpsixo s^qSu 9qq. jo ss9it9t8uts puis ^T^iiapi oi['} oq pspu9ss9 Avas. on UT st A^nun^uoo psoTsAqj ^u9tu9auoo %i pnu 9av jt Smqq. ojSins is sis po^eaq. oq Amu s9^o9j§Sb osaip jo Any •cl99qs jo }pOTj is ^t ut s^yooq 9qq. yje q^TAV XTBiqq is c!iT no sSut -pjmq J9q^o puis 9snoq is qcnM pms{ sis qons 'sSinqq. jo 9^o9jSSb ins 03 u Sinqq „ is jo uoqou STq*} §UTpn9^x9 ui fure§is <9^qnoi^ on st 9J9qx -aiSSy 'AVB[ JO S9Tni A(\ snoT^09iTp ure^ieo ut p9^TinT^ 9q Amu Xaqq. TTxmoqi U9A9 9qiLIT19pUT 8113 qOUTAl SJ9A\od 'p9UA\0 Suup 9iq J9A0 psodsTp puis 9sn jo sj9avocI 9Siv\ sisq S^q.oLT STq JO AlTIS ipTM paqiTsd ^OH S13q OT{A\ J9UA\0 TO ^ISqC} 9Sp9|A\0U^ UOUTUTOO SIS AjJISUOTSTAOjd %l O^q. 9^ •9q AmiT '9STAYJ91T'10 10 cTTTTSI9UM0 JO fSlT]§TI 9JC[TSS0d 9qq. 3i3qA\ SnuapTsnoo a\ou ^ou 9Ji3 9^\_ 'Apoqon oq. paSnojaq %i jt ^yooq ps9J is 9q Tjqs ppioAV 'siq.oTJ 9|qTSSod jqe jo inns 9q; jo 'zrooq eqq. SinpjisSgj 's^uo Auis jo 'scrtSli A tit sis araiss 8ip ^on AtutistxI st }[ooq 8lIX Sutujtvi9j jo A-inp eqq. pnis fp9pnnm9p-9i ■[rinn 10 'aunq. p99iSn 9qq joj >yooq oqq. Smd99^ jo qqSn aqq. 9Aisq j '^jooq 13 jo J9AVOUoq sy 'sSinqq. si? 'd99qs 13 jo '}{ooq 13 c9snoq 13 SnTqi39jq ut sjuooo iC^noTjjTp oj^[ *9sn pmireiiT jo Aisa\ 9qq in qnA\ qp39p 9q niso qoTqAV sqogfqo 9tc{tsit9S p3TJ9qi3iu are jistttiuisj qSOUT 9J1S 9AV qOTlTAV IftTAl u sSuTTT;} „ JO pnp[ 8T{X IvaiodaoQ vi THINGS, EVENTS, AND ACTS 123 Physical discontinuity makes it, no doubt, easier to separate those rights and form new combinations; but easier only in degree. One sheep may be bought and driven off' from the flock; one chair out of a set may be sold or given away. But also when the sheep becomes mutton each leg of mutton may have a separate owner; and a chimney in a house may be repaired and the old materials taken by the builder in part payment, or a whole wing of the house may be rebuilt and the materials sold in lots. So far we have spoken of things (as Littleton said) whereof a man may have a manual occupa- tion, possession, or receipt.1 But many elements of wealth are not tangible, intangible elements of as we know without assuming any special know- wealth, ledge of law. The worth of five sovereigns is in the gold; the worth of a five-pound note, and the reason why we can get five sovereigns for it, is in the credit of the Bank of England. Whatever debts are owed to an individual, a firm, or a cor- poration in the course of business are part of the assets of the business. Nay more, the goodwill of a business, which is merely the right to go on using the old name, coupled with the expectation 1 Litt. § 10. 124 FIRST BOOK OF JURISPRUDENCE chap. that custom will still follow the name, is often of great pecuniary value. Then we have exclusive rights which, though not merely personal, are only remotely connected with any tangible thing, and consist in the legal power of excluding others from competition in respect of their subject-matter. One may have an exclusive right to take fish in a certain piece of water, to ferry passengers across a river for hire at a certain place, to make and sell a new machine or instrument, to multiply and sell copies of a book or a print. Again we may have rights over tangible things which belong to others; rights of way over land, rights of using or detaining goods by way of loan, hire, or pledge, and others. These rights can be and are regarded in law as having distinct and measurable values, and whatever has such value is a thing, though not a bodily and sensible thing. These benefits can be part of a man's inheritance or goods, of his "estate and effects," to use the largest term known to our law; they are capable of transmission and, for the most part, of voluntary alienation. We must recognise as things, in fact, all objects of exchange and commerce which are recognised by the usage of mankind. It is often said that such things have no being vi THINGS, EVENTS, AND ACTS 125 save in contemplation of law: the Eoman phrase Not mere creatures is "in hire consistunt." But this (although it of law. contains a truth, as we may see hereafter) is not accurate as a general statement. There may be "groups of advantages," to use Professor Holland's happy term, which have an appreciable value though the law does not recognise them. Im- perfect rights of the nature of copyright, for example, might exist outside the law by usage and courtesy. Such rights did in fact exist in the United States to a certain extent before the Copyright Act of 1891, as regards English books made over to American publishers; and they had a certain value to the American publisher, and consequently to the British author, although they were wholly unprotected by law, and (as events showed) precarious in fact. The goodwill of a business, again, would still have a commercial value if it were less efficiently protected by law than it is; and it would probably by no means lose the whole of its value even if it were not protected at all. The law began to protect it when it became notoriously valuable and not before. Hence it seems that in the case of incorporeal things the advantage or "group of advantages" enjoyed or to be enjoyed in fact is 126 FIRST BOOK OF JURISPRUDENCE CHAr. the true subject-matter of the right, and corre- sponds to the tangible object which we call a corporeal thing as distinct from the rights exercised over it. Of course the value of an incorporeal thing may be largely due to its recognition and protection by the law, and some incorporeal things may be called creatures of the law. But no one will suppose that the value of tangible property would not also be diminished if the law should cease to punish theft, or to decide questions of title. The parallel therefore seems to hold good notwithstanding the possible anomalies of extreme cases. At this point it may be worth considering, at the risk of an apparent paradox, whether corporeal things themselves are so corporeal as we think at first. Tor a material object is really nothing to the law, whatever it may be to science or philosophy, save as an occasion of use or enjoy- ment to man, or as an instrument in human acts. In fact there are parcels of terrestrial matter which are not things in the law. Of some such parcels, on grounds of necessary convenience, we have to say "communia sunt omnium," the water of the high seas for example; of other such we say, for reasons of religion or state, "nullius in vi THINGS, EVENTS, AND ACTS 127 bonis sunt." This is much easier to illustrate from the Bom an law than from our own; for the Common Law abhors a vacuum of property:1 a statement which the reader, unless he be already learned in the law, must provisionally take for granted. A thing which belongs to nobody is of no legal importance until something happens to bring a person into relation with it, and make it the subject-matter of enforceable rights. An old iron pot thrown away and dropped at the bottom of a canal, for example, might well be no more to the law than if it were in another planet. If it is something to the law, it is because the local law may happen to provide, as ours does, that abandon- ment shall not wholly destroy or suspend the legal qualities of a chattel which has once been a thing of value. So that on the whole perhaps we have good ground for saying that the "thing" of legal contemplation, even when we have to do with a material object, is not precisely the object as we find it in common experience, but rather the entirety of its possible legal relations to persons. We say entirety, not sum, because the capacity of being conceived as a distinct whole is a necessary attribute of an individual thing. 1 Holmes, The Common Law, p. 237. 123 FIRST BOOK OF JURISPRUDENCE chap. What the relations of a person to a thing can be must depend in fact on the nature of the thing as continuous or discontinuous, corporeal or in- corporeal, and in law on the character and the extent of the powers of use and disposal which particular systems of law may recognise. A man who has copyright in a book can alienate but cannot destroy the copyright, though he may choose, on some scruple of conscience against monopoly in spiritual benefit,1 not to exercise his right or reap the profit of it. The owner of an unique manuscript can destroy it in fact, but the law might conceivably forbid him to do so, and probably would if the obvious interest of those to whom things of unique value belong were not thought to be sufficient security against wanton destruction. Land, though it can be wasted or, in some situations, flooded, cannot be destroyed in the same sense as ordinary chattels; and some few chattels, such as the harder kinds of gems, may be considered indestructible, so far as ordinary accidents are concerned, as compared with perishable goods and even with relatively lasting materials of common use. Through all the range of natural 1 Count Lyof Tolstoi not long ago disclaimed all interest in the copyright of his works for some such reason. vi THINGS, EVENTS, AND ACTS 129 # and legal diversities, however, a thing remains, for the lawyer's purposes, that which is attributed by law to the natural or conventional thing in regard to the rights and duties of persons. Here, then, we seem to have a necessary point Things as the poten- of contact between law and philosophy. The tiaiity of rights. lawyer as well as the metaphysician is driven, when he takes to thorough-going analysis, to face idealism. What we commonly call things are resolved by philosophical analysis into possibilities or occasions of perception. The idealist boldly says that the esse of material things is imxirpi. So we may say that in contemplation of law the esse of things is lutberi or in bonis esse. That only is a thing which can, in the widest sense, be owned: it must be the subject-matter of rights that the law will recognise. An ownerless thing is for the lawyer pretty much what a "thing in itself" is for the philosopher. A res nullius is as void of legally intelligible contents as is a Ding an sich of intelligible contents of any kind. It is merely negative and irrational; the very notion of it excludes it from the world of rational import. We can see in it, at most, the potency of a future legal significance. The "books in my closet," in Berkeley's famous example, are merely the poten- K 130 FIRST BOOK OF JURISPRUDENCE chap. tiality of the books I shall see when I open the closet. And so the ownerless abandoned thing, in systems which admit the extinction of property, is the mere potentiality of possession or ownership to come, whether the thing itself be buried treasure or a worthless tin pot. There is a legal vacuum till the act of an occupier or finder restores the thing, so to speak, to the world of legal reality. Hence, if we find in a particular system of law rules which are astute even to refinement to prevent this state of vacuum, there is no reason to treat such an endeavour as absurd. In fact the old masters of the Common Law did take the line of abhorring vacant possession or property, and put forth extreme ingenuity to avoid admitting it. "The law must needs reduce the properties of all goods to some man." 1 Without contending that they were consciously led by any philosophic reason, one may be allowed to think that, whether by scientific instinct or by good fortune, they showed themselves on this point at least as good philosophers as the Eoman lawyers. Summary. For the present purpose it is enough to know that in any case the legal notion of a thing must extend far beyond those objects which are "things" 1 Doct. and Stud. dial. ii. c. 51. vi THINGS, EVENTS, AND ACTS 131 in the popular sense as being capable of physical apprehension and use. Artificial aggregates of material objects, like a library or a flock of sheep, are only the first step in the extension. We have to include all distinct elements of wealth, though not tangible or sensible, which can be the source of profitable use or benefit to any certain person. The copyright, say of Jowett's Plato, is as much a thing as a bound volume of the book; railway shares are as much things as the rolling stock of the line. How a particular thing can be used and en- joyed is a matter of fact conditioned by its nature and qualities, and this whether the thing be cor- poreal or incorporeal, save that an incorporeal thing may consist merely in the power or right of having some strictly limited advantage, using a particular path for example, while the possessor of a corporeal thing has indefinite though not infinite ways of manifesting his control over it. Questions may arise as to what forms of use, and how much use, the law will recognise as proof of effective and exclusive control. The use and enjoyment remain in themselves matters of pure fact. But we can speak with certainty of the rights of a possessor or owner only when we know what powers of use 132 FIRST BOOK OF JURISPRUDENCE chap. and disposal are recognised by the law; not only how things can be used, but how they may be, and how they may or must not be. Events and Things are brought into relation with Persons by acts. Events and Acts, which are in the world of law that which motion is in the world of matter. A great number, indeed the far greater number of events and acts are obviously of no legal import whatever. The falling of an apple from a man's own tree on his own ground makes no difference in any one's rights; and for the owner, if he is on the spot, to pick it up or not to pick it up, to eat or not to eat it, is an exercise of his lawful discretion which from a legal point of view is equally in- different. But it is impossible to say of almost any event or act that it cannot have legal import- ance. A very small change of circumstances will make all the difference in this respect. Let that apple fall from a branch projecting a few feet beyond the owners boundary, and come to rest on a neighbour's land. Here is matter for question- ing at once. Whose is the apple now? Does it still belong to the owner of the tree? If so, may he go on his neighbour's land to take it, or must he ask for it? Or does it belong to the neighbour on whose land it has fallen? if so, unconditionally VI 133 THINGS, EVENTS, AND ACTS or subject to any and what conditions as to com- pensating the former owner? If a trespasser comes and takes the apple, whom has he wronged? All these questions, mostly trifling in the particular case suggested, but representing points which in other cases may be capable of involving great interests, have to receive distinct consideration, and may be not only distinctly but differently answered in different systems of jurisprudence. Walking, again, is a necessary and most common act of all persons who have the use of their legs; and so long as a man's legs take him where he has a right to be it is indifferent to the law. That it may, on the other hand, involve trespass, though oftentimes a merely nominal and innocent trespass, is common experience to most people who have walked in the country without strictly confining themselves to high roads and beaten paths. Every act may be said to be, in a large sense, Distinction of acts from an event. But it is convenient to use the word events. "event" only for that which happens or at least may happen1 in the course of nature without 1 As to events which may or may not be produced by human action it is often immaterial for many purposes to consider whether in fact they were so or not. The rights which arise on a man's death afford one obvious example. It is hardly needful to add that for our purpose only those acts count as such which can be 134 FIRST BOOK OF JURISPRUDENCE chap. being directly determined by human intervention. It is proper to note that in archaic systems of law the part played by acts, as compared with events, is far less than it becomes in modern systems. For in early times, or, to speak more exactly, in early stages of civilisation, the range accorded to individual will and discretion is but a narrow one. Disposal of property by will, for example, is a relatively modern institution, and unrestricted power so to dispose of it, for example to the exclusion of a surviving wife or children, is not found at this day in countries where the Eoman law has set the rule in matters of inherit- ance. Now the death of a man holding valuable property is an event which must necessarily have some legal effect; for the lands or goods which remain must belong to some one, be it the State or one or more individual persons, natural or corporate. In a system where dispositions by last will are not recognised, the event of death at once calls into operation the fixed rules of law, whatever they may be, which determine the succession to the deceased person's estate. In a system where a certain share cannot be alienated by will from referred to a human agent. Such facts as a horse running away, a clog biting a man, are not acts but merely events. vi THINGS, EVENTS, AND ACTS 135 a man's children, the will of a man who dies leaving children, so far as it disposes of what he has power to dispose of, is an act which takes effect upon the event of his death. So far as he has not exercised his disposing powers, and so far as concerns the portion of his estate which he cannot dispose of, the rights of his successor or successors are determined by the rules of law. Where full powers of testamentary disposition exist, and an owner has exercised them as to the whole of his property, the event of his death calls his act of disposition into play, and has not, as regards what was comprised in that act, any other operation.1 So far as he has not exercised his rights, the event of his death operates as in the cases before put. Where changes are worked in the legal rights ik Acts of the law," and interests of persons by rules of law not de- and "acts •n • in the law.' pendent on the will of any party, this is often and conveniently said to be an "act of the law" as contrasted with an "act of parties/' although the contrast is not logically quite exact. Eules 1 We are now speaking only of succession under a will as an alternative to intestate succession. The devolution of property in which limited interests have been created may depend on previous acts of parties, or on rules of law, or partly on the one and partly on the other. It is sufficient and preferable, for the purpose in hand, to take the simplest example. 136 FIRST BOOK OF JURISPRUDENCE chap. of law have to determine the legal results of acts and events alike. Brit in many transactions the rules leave a wide freedom to the parties of appoint- ing at their own pleasure what the result shall be; the law makes itself, in fact, the instrument of their intentions, and in a manner stands aside. As the Twelve Tables said: "Cum nexum faciet mancipiumque, uti lingua nuncupassit ita ius esto." The phrase "act in the law" may conveniently be used for an act of parties which is fitted and designed to have a distinct legal effect, and, although it occurs with a wider application, it seems desirable to restrict it to this meaning, for which we have not otherwise any compendious English expression. We might also speak if we chose of "events in the law," meaning events producing some legal effect; but since jurisprudence takes notice of events only so far forth as they can have legal effect, it will almost always be superfluous to use any such phrase. The arising of liability to suffer punishment, or to pay compensation or otherwise submit to civil redress, by reason of a merely wrongful act, is not commonly spoken of as an act of the law, though the liability and the corresponding right vi THINGS, EVENTS, AND ACTS 137 to redress are of course fixed by law as much as the accrual of a right of inheritance or the like. The reason is that the contrast between an act of the law and an act of parties is not here applicable. A merely wrongful act cannot be an act in the law. There is no need or occasion for us to enter Acts con- sidered as here on the psychological definition of an act. It voluntary or other- concerns us as lawyers to know not so much what wise. philosophers will call an act as of what kinds of acts, and to what purpose, the law takes notice. Generally speaking, the law has regard only to such acts as are voluntary and manifest. This is a necessary consequence of the nature of legal justice. The judgment of law must not only be but appear just, and can deal only with that which is capable of proof. The secret counsels and re- solves of a man's mind are voluntary, but not manifest; the movements of a man's limbs when he gesticulates in a troubled dream, or walks in his sleep, are manifest but not voluntary. Perhaps these last are not properly to be called acts at all; in any case they are not on the footing of normal acts. How far, if at all, they can be a source of liability to the apparent actor may be a question of no small difficulty; but in fact cases of this kind 138 CHAP. FIRST BOOK OF JURISPRUDENCE are of such infrequent occurrence 1 in the affairs of justice that it would be quite out of place to dwell upon them in a general survey of legal ideas and categories. As to acts of the mind which are not directly manifested in outward performance, the law will not generally take account of them, both be- cause they cannot be certainly known, and because no certain result can be assigned to them. Bodily motions, on the other hand, may be executed under direct mechanical constraint, without or against the person's will, as if a man's hand should be forcibly guided to make a signature or mark. Such motions are not acts at all, and are mentioned here only because former writers have thought it needful or proper to mention them by way of abundant caution. It is enough for us to attend to voluntary acts as they are commonly known and understood, intention In considering voluntary acts with regard to and motive. the agent's responsibility, it is usual to distinguish between intention and motive. Intention is the wish or desire accompanying an act, and having regard not only to the act itself, but to the con- sequence or consequences to be produced. Thus intention includes will, but also covers much more 1 To the best of rny knowledge there is not in the whole mass of English reported decisions any authority governing such cases. vi THINGS, EVENTS, AND ACTS 139 than is commonly understood by that term. It is needless to draw the line for any purpose not strictly philosophical. Near and obvious con- sequences are for all common purposes reckoned part of the act itself, as we shall see more at large presently. Thus when I press the button of an electric door-bell, we say that I ring the bell; in other words the sounding of the bell is included in my act, though it really depends on conditions quite beyond my control, such as the electrical apparatus being in order. My intention extends to procuring the door to be opened, being admitted if my friends are at home, leaving a card or message if they are out, or otherwise as the nature of my errand may be. Motive is, unhappily, a more ambiguous word.1 Motive as specific Sometimes we mean by "motive" the desire for desire i-i-i inducing a particular result which induces a person to act action, in a manner fitted to bring about that result. We speak here only of those motives which are effectual. For possible grounds of action which are considered and rejected, and therefore do not enter into the determination of any act, are plainly beyond the scope of legal judgment. Now, so far as desire of 1 Bentham was troubled by its multifariousness, Principles of Morals and Legislation, ch. x. # 1, ss. iv. -vi. 140 FIRST BOOK OF JURISPRUDENCE chap. this or that particular result is concerned, it would seem that nothing can be present in a man's motives (that is, effectual motives) which is not also present in his intention. For his intention, however far it extends, is determined, point for point, by his desires. The desired and intended consequences of an action must be commensurate with the desires that prompted it. Every representation of a pre- ferred object in contemplation has its active equivalent in the formed intention. In delibera- tion we work backwards from the ultimate object to the intermediate means, and end with the immediate act to be done: in will or intention we start from the immediate act and look forward to the desired consequences. This was clearly seen by Aristotle, who points out that the contents of deliberation (the weighing of motives) and choice (the formation of intention) are the same, except that in choice the matter of deliberation is finally determined; intention is the sum of what is chosen as desirable among the objects of desire :1 the two processes are in reverse order, for in deliberation 1 (3ov\evT6v 5e teal wpoaiperbv rb aurd, ir\rji> a as the scribe quoted in Mr. Horwood's Preface to Y.B. 32 & 33 Ed. I. p. xxxiii., where we should now say "practice." But the distinction between substantive law and practice is modern. II 241 THE SOURCES OF ENGLISH LAW English law were assured, from the reign of Henry II. to that of Edward I., the king's judges had no small power of determining what customs should prevail and be received as the "custom of the realm," and that they exercised it freely. Thus at the end of the twelfth century primogeniture does not yet appear as the general law of inheritance in England, but only as a custom appropriate to military tenures of land, and occurring indeed in non-military tenures, but there competing, on equal terms at best, with equal division among sons or even the preference of the youngest son. By the end of the thirteenth century we find it established as the general rule, and any other order of succession treated as exceptional. We can hardly resist the inference that it had grown by the steady encouragement of the judges. At the same time there is not much reason to doubt that the judges fairly represented the effective desires and forces of society at large. If there is any doctrine of the medieval Common Law that might be plausibly suspected of being an artificial creation, it is the vehement presumption against agreements and com- binations tending to "restraint of trade." But this doctrine occurs in the strongest form, as early as the end of the thirteenth century, in the records R 242 CHAP. FIRST BOOK OF JURISPRUDENCE of a municipal court in which the king's judges had no part.1 The current description of Common Law as the custom of the realm is not, then, to be dismissed as unhistorical. We have only to remember that the king's judges undertook, from an early time, to know better than the men of any particular city or county what the custom of the realm was. Indeed it is plain that local inquiries, in whatever manner made, could inform them only of local usage; and that, so far as general usage really did exist or tend to exist, the kings judges and officers were the only persons who had sufficient oppor- tunities of knowing it; for judicial circuits and personal attendance on the king in his constant journeys made them familiar, in the regular course of their duties, with all parts of the country. More knowledge of England as a whole must have been collected at the king's court than could have been found anywhere else. Being thus taken charge of from its birth by a strong centralised power, and developed under the hands of trained professional judges and advocates, the Common 1 Lcet Jurisdiction in Noru:ich (Selden Society), 1892, p. 52, a.d. 1299-1300: "De omnibus candelariis pro quadam con- vencione inter eos facta, videlicet quod nullus eorum venderet libram candele minus quam alter." II 243 THE SOURCES OF ENGLISH LAW Law rapidly became a specialised branch of learning worked out by rule, "scientific" law as the Continental writers say. Much of the usage which determined its form was, by the nature of the case, professional and official usage. The methods and practice of the Anglo - Norman chancery could not have much to do with English custom in any popular sense. But the "lex et consuetudo regni nostri" is still there as a whole, and resting on the same foundation, whatever may be the proportions of lay and learned, popular and official elements in any given part of it. The body of rules called Equity, and ad- Origin of equity ministered formerly by the Court of Chancery, jurisdic- tion in and one or two local courts in privileged juris- England, dictions, to the exclusion of the king's ordinary courts at Westminster, is no longer a separate system. As matter of convenience, however, it is still chiefly though not exclusively administered in the Chancery Division of the High Court of Justice, and studied by a section of the Bar who make it their special business. And it still presents, as much as ever, a distinct historical problem, one might almost say an unique one. As matter of history no one has ever ascribed the origin of English Equity to either legislation or 244 CHAP. FIRST BOOK OF JURISPRUDENCE custom. It is derived from the king's ancient power of doing justice at his discretion, and by special means in cases where the ordinary means of justice failed, a power admitted from very ancient times down to the seventeenth century. This power is what Maine has called "a supplementary or residuary jurisdiction in the king."1 Lambarde, more than two centuries earlier, described it as the king's "own regal, absolute, and extraordinary pre-eminence of jurisdiction in civil causes," committed by the king to his Chancellor.2 In course of time it became well understood in what kinds of cases the king, or rather his Chancellor and other learned persons about the Chancellor, w7oulcl think the remedies of the Common Law inadequate. Eelief in the Chancery ceased to be a privilege or bounty of royal grace, and became the right of the subject. When the benefit of the king's equity was once a matter of right, it was inevitable that the rules of equity should become as methodical as any other part of the law. Blackstone could already say with truth that "the 1 Early Law and Custom, p. 164. 2 Archcion, p. 63, eel. 1635. What Lambarde calls "the true moderation of jurisdiction absolute " is discussed by him in later chapters. His opinion is, briefly, that the King in Council may not contravene the Common Law, but may supplement it. II 245 THE SOURCES OF ENGLISH LAW system of our courts of equity is a laboured connected system, governed by established rules and bound down by precedents."1 Much fuller development in the same direction took place in the generations following Blackstone. Our equity jurisprudence, to use the accustomed phrase, has been formed altogether by the work of learned persons having a great deal of real power at their disposal, and consciously using that power to produce a systematic doctrine. It therefore answers the description of "scientific law" more exactly than any other part of our English legal materials, and perhaps more exactly than any other modern form of "unwritten" law. We may now find it useful to examine more closely the view taken by English lawyers of the seat and power of the ultimate legislative authority (sovereignty as it is called by our modern publicists) and of the authority and reception of custom. 1 Coram, iii. 432. This tacitly corrects the loose passage in the chapter on the Nature of Laws, i. 62, where however "equity" means judicial discretion if it means anything. CHAPTEE III SOVEREIGNTY IN ENGLISH LAW The According to modern law and practice there is no supremacy of Parlia- doubt that Parliament, or to speak more technically, the Queen in Parliament, is sovereign in England, and no other person or body has the attributes of sovereignty. "The one fundamental dogma of English constitutional law is the absolute legis- lative sovereignty or despotism of the King in Par- liament/' 1 That is to say, Parliament is the one authority capable of making, declaring, and amending the law of England without reference to any other authority and without any legal limit to its own power. Ever since there has been an English monarchy it has been understood that the king had powers of legislation, and that they ought not to be exercised without advice.2 From the thirteenth cen- 1 Dicey on the Law of the Constitution, 4th ed. 1893, p. 136. 2 Leges namque Anglicanas licet non scriptas leges appellari non Ill 247 SOVEREIGNTY IN ENGLISH LAW tury onwards it was understood, in particular, that new taxes could not be imposed without the con- sent of Parliament, but other points long remained vague. In later times it has been definitely settled that the only competent advice and consent for all legislative purposes are those of the Lords spiritual and temporal and Commons in Parliament assembled. Later still it has become an undisputed proposition that no bounds can be assigned in point of law to the legislative power exercised with that authority. The earliest definite statement of the modern doctrine appears to be Sir Thomas Smith's in his Commonwealth of England, written as the book itself states,1 in 1565, and intended mainly for the use of Continental readers.2 The book was published only in 1583. "The most high and absolute power of the realm Sir Thomas of England consisteth in the Parliament. . . . That which is done by this consent is called firm, stable and sanctum, and is taken for law. The Parliament videtur absurdurn. . . eas scilicet quas super dubiis in consilio definiendis, procerum quidem consilio et principis accedente auctoritate, constat esse promulgatas.—Glanvill, Prol. 1 Ad fin. 2 Learned persons resorting to England seem to have used it as a kind of guide-book. See the Elzevir edition of the Latin text, 1641, furnished with an itinerary and other matter to the same purpose. 248 FIRST BOOK OF JURISPRUDENCE chap. abrogateth old laws, maketh new, giveth order for things past and for things hereafter to be followed, changeth right and possessions of private men, legitimateth bastards, establisheth forms of religion, altereth weights and measures, giveth form of suc- cession to the crown, defineth of doubtful rights whereof is no law already made, appointeth subsidies, tailes, taxes, and impositions, giveth most free pardons and absolutions, restoreth in blood and name, as the highest court condemeth or absolveth them whom the prince will put to trial. And to be short, all that ever the people of Borne might do either Ccn- turiatis Comitiis or Tributis, the same may be clone by the Parliament of England; which representeth and hath the power of the whole realm, both the head and body. For every Englishman is intended to be there present either in person or by procura- tion and attorney, of what pre-eminence, state, dignity or quality soever he be, from the prince (be he king or queen) to the lowest person of England. And the consent of the Parliament is taken to be every man's consent." 1 Sixteenth Here we have the first exposition by any English theories. writer, if not by any European one, of the notion of sovereignty in its modern amplitude. Almost simul- 1 T. Smith, Commonwealth of England, bk. ii. ch. ii. in SOVEREIGNTY IN ENGLISH LAW 249 taneously Bodin, writing in France, defined "maiestas" to the same effect, and argued, as Hobbes did after- wards, that in England sovereignty belonged to the king alone. It may well be supposed that Sir Thomas Smith, while he was employed as ambas- sador to the French court, had Bodin's work in some way communicated to him, although it w^as not actually published before 15 7 7, in which year Smith died. Apparently Sir Thomas Smith was anxious both to make it clear to Frenchmen that the king of England was not absolute, and to ascribe to Parliament at least as much authority as any French- man could ascribe to the king of France. It must be remembered that Sir Thomas Smith, who was the first Begius Professor of Civil Law at Cambridge, was not a common lawyer but a civilian. He was familiar with the Eoman adage, Quod principi placuit legis habet vigor cm, and was determined, it seems, to show his Continental colleagues in Eoman learning that we had as good a sovereign as any of theirs. He saw the importance of the point as clearly as Hobbes did seventy years later, and, using his in- sight with greater political wisdom, boldly put, not the king alone, but the King in Parliament, in the place of the Eoman Emperor. In this he was some- what before his age. His view is amply justified 250 FIRST BOOK OF JURISPRUDENCE chap. by all modern constitutional writers. Blackstone expressly declares that the sovereignty of the British constitution is lodged in Parliament,1 and that it is "the place where that absolute despotic power which must in all governments reside somewhere, is in- trusted by the constitution of these kingdoms"; after which he almost repeats Sir Thomas Smith's language.2 But in Sir Thomas Smith's own time the sages of the Common Law would hardly have agreed with him. Their opinion seems to have been that not only the king was subject to the law, but the law was in some way above Parliament. Some fundamental principles of law and justice, never denned but generically described as " common right," were sacred against the legislature, and if Parliament were to transgress them it would be the right and the duty of the judges to pay no attention to such enactments. Blackstone. Coke enounced this opinion with his usual vehemence and even more than his usual inaccuracy or disingenuousness in reading his own particular opinion into the authorities on which he professed to rely.3 He found, as will appear below, nominal 1 Comm. i. 51. 2 lb. 160, 161. 3 Bonham's Ca. 8 Rep. 118 a: "It appears in our books that in many cases the common law will control acts of parliament and sometimes adjudge them to be utterly void; for when an act of Ill 251 SOVEREIGNTY IN ENGLISH LAW followers down to the eighteenth century. Black- stone, however, while in one place he makes a nominal concession to the "law of nature/' uses quite other language when he comes to the practical side of English institutions. He denies in particular what he has seemed to admit in general; he will hear nothing of any human authority being em- powered to control the Parliament of Great Britain, and explains away the sayings of his predecessors as meaning only that Acts of Parliament are to be construed in a reasonable sense if possible. It is worth while to compare the passages. "It [the law of nature] is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this." 1 "Acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, mani- parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void; and therefore in 8 Ed. III. 30. . . . Herle saith, some statutes are made against law and right, which those who made them perceiving, would not put them in execu- tion." The italicised words are a mere gloss of Coke's own. What Herle did say, as reported, is "lis sont ascuns statutes faitz que celuy mesme qui les fist ne les voleit pas mettre en fait." Plenty of modern statutes have been inoperative in practice, not because the common law controlled them, but because they were in fact un- workable. 1 Comm. i. 41. 252 FIRST BOOK OF JURISPRUDENCE chap. festly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid clown more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be sub- versive of all government. " 1 Modem "True it is that what the parliament doth, no doctrine. authority upon earth can undo."" No case is known, in fact, in which an English court of justice has openly taken on itself to overrule or disregard the plain meaning of an Act of Parliament. The example given for illustration's sake is that an Act making a man judge in his own cause would be void. Thus Holt said: "If an Act of Parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his 1 Comm. i. 91. 2 lb. i. 161. in SOVEREIGNTY IN ENGLISH LAW 253 own cause, it would be a void Act of Parliament; for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd/'1 But this opinion has never been acted upon; and indeed the example is not wholly fortunate, for the settled rule of law is that, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.2 Nowadays the objection of personal interest in the judge commonly presents itself in the form of the judge being a shareholder (for his own behoof or as trustee) in some railway or other public company whose matters are before him; and it is also commonly waived by the parties.3 It is now quite well understood that the judges Acts of tt - ■> -r* t Parliament will not discuss the validity ol an Act ot Parliament, not judici- ally dis- 1 City of London v. IVood, 12 Mod. at p. 687. putable. 2 For a curious early illustration, too long for the text, see the note at the end of this chapter, p. 261. 3 For a reported example see RccdU v. L. &• N. W.R. Co. (1849), 4 Ex. 244, 20 L.J. Ex. 65, where Parke, B. stated that, being interested in the defendant company, he took part in the case only at the request of counsel on both sides. 254 FIRST BOOK OF JURISPRUDENCE chap. They will not even entertain allegations that a private Act was obtained by fraud or improper practices. If Parliament has been deceived, the remedy is with Parliament alone. Within our own time the late Mr. Justice Willes, a great master of the Common Law, and always ready on fitting occasions to maintain the dignity of the law and its officers, laid this down in the plainest terms. An attempt had been made to found an argument on the suggestion that a local railway company's Acts had been obtained, in effect, by a fraud on Parlia- ment. "It is further urged," said Willes, J., "that the company is a mere nonentity, and there never were any shares or shareholders. That resolves itself into this, that Parliament was induced by fraudulent re- citals to pass the Act which formed the company. I would observe, as to these Acts of Parliament, that they are the law of this land; and we do not sit here as a court of appeal from Parliament. It was once said—I think in Hobart1—that, if an Act of Parliament were to create a man judge in his own case, the Court might disregard it. That dictum, 1 In Day v. Savadge, Hob. 87; "Even an Act of Parliament made against natural equity, as, to make a man judge in his own ease, is void in itself; for, jura naturte sunt immutabilia, and they are leges legum." Ill 255 SOVEREIGNTY IN ENGLISH LAW however, stands as a warning, rather than an author- ity to be followed. We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them." 1 The sovereignty of Parliament being undisputed, Distinction of legal we have to bear in mind exactly what we under- sovereignty from ulti- stand by it for an English lawyer's purposes. No mate poii- power less than the Queen m Parliament is sovereign, for that is the only power which can issue supreme and uncontrolled legal commands. Parliament as a whole, and Parliament alone, can make and alter the law of the land without reference to any other authority. Moreover, we are not concerned, as students of the sources of English law in general, with the manner in which the action of the supreme legislature is determined. As matter of form, this 1 Lee v. Bude and Torrington Ry. Co. (1871), L.R. 6 CP. at p. 5S2. 256 FIRST BOOK OF JURISPRUDENCE chap. belongs to the special study of the English constitu- tion and of the law and practice of Parliament. As matter of substance, the consideration of political power, of its practical seat and ultimate sources, would take us out of the field of jurisprudence proper and into that of politics and constitutional history. It is now generally recognised that the majority of the House of Commons has and exercises, for all substantial intents, political supremacy in these kingdoms. It cannot directly govern at all; it cannot legislate without the concurrence of the House of Lords and the Crown. The Crown, how- ever, can act only on the advice of Ministers, and the Ministers of the Crown are chosen from the party which commands a majority in the House of Commons. That majority, so long as it holds to- gether, can cause its will to be observed, on the whole, in every department of government. Or, to put the same thing in a negative form which is perhaps more accurate, it is not possible for the Government of the United Kingdom to be carried on by any lawful means in continuous opposition to the majority of the House of Commons. But this does not touch the doctrine of legal sovereignty. The power which can ultimately determine the bent of legislation, or control the execution of existing in SOVEREIGNTY IN ENGLISH LAW 257 laws, but cannot itself legislate, is not a legal but a political power. Now the majority of the House of Commons, as we said, does not govern or legislate. The House of Commons itself has no power whatever of issuing any direct legal commands except so far as it can do so for the purpose of regulating its own procedure and discipline, and enforcing its own privileges. It may practically make a statute in- operative by refusing to vote the supplies necessary for putting the statute in execution (a thing which has been known to happen), but it cannot alter one letter of the text. This is not what w7e understand by sovereignty in the legal sense. It has been said by one or two modern writers that the electors who return members to the House of Commons are sovereign. This involves a still greater confusion of thought than attributing sovereignty to the House of Commons when elected. The persons chosen by the voters at a general election will certainly form that part of the legislature in which the controlling political power resides. But that, as we have seen, does not make them sovereign, much less does it make the electors sovereign. In fact the electors are not legislators or anything like legislators. They have not the power of issuing any legal commands at all. 258 CHAP. FIRST BOOK OF JURISPRUDENCE An identical resolution passed by the electors of every constituency in England, or a large majority of the constituencies, at the time of a general election or at any other time, might be a very notable political event. But it would certainly have no legal force whatever. It would create no kind of legal authority, justification or excuse, and no court of justice would be entitled (much less bound) to pay any attention to it. As Cornewall Lewis long ago rightly said, "The right of voting for the election of one who is to possess a share of the sovereignty is itself no more a share of the sovereignty than the right of publishing a political treatise or a political newspaper." 1 Cases of Although the whole theory of Sovereignty is or divided modern, and in fact could not have been definitely ^ereign. ^ expressed before the principal states of modern Europe had acquired a strong and consoli- dated government, writers on the philosophy of law and politics have readily fallen into the way of assuming that civilised government cannot exist, or can exist only in an imperfect manner, unless there is some definite body in the State to which sove- reignty can be attributed. Thus Blackstone 2 says: 1 Remarks on the Use and Abuse of some Political Terms, Loud. 1832, p. 43. 2 Comm. i. 49. in SOVEREIGNTY IN ENGLISH LAW 259 However they [existing forms of government] began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura sv.mma imperii or the rights of sovereignty reside. Blacks tone's language is well enough suited to the facts that can be observed in the longitude of Oxford or of Paris, and it probably did not occur to him to look much farther. Even in Blackstone's time, however, there might have been some trouble in discovering the jura, summa imperii in the constitution of the Holy Boman Empire, which was then living in a decrepit old age, but living still. In our own time, if we extend our view eastward to Bern, or as far west as Washington or Ottawa, we may find reason to think that Black- stone laid down the supposed necessity of an absolute uncontrolled authority in terms altogether too peremptory and universal. It would not be appropriate here to enter on the problems, whether legal or political, that are raised by the institutions of federal governments like those of the United States and Switzerland, and in a less complicated degree by those of countries where, as in the Netherlands, or an individual American State within the Union, such as the Commonwealth of Massa- chusetts or the State of Illinois, the constitution is 260 FIRST BOOK OF JURISPRUDENCE ciiAr. in fact defined by a fundamental written instrument, and the terms of that instrument cannot be altered by the process of ordinary legislation. In all such cases the ordinary legislative body is in a position much like that of the legislature in a self-irovernino- British colony. We can hardly say that it is in no sense sovereign, for within the bounds of its competence it knows no human superior. But since its competence has assigned and * known bounds, we cannot attribute sovereignty to it in the same sense in which sovereignty is attributed to the British Parliament. Where there is a rir/iJ constitution, to use the convenient term introduced by Mr. Bryce and Mr. Dicey,1 there cannot be any one body in permanent existence or habitual activity which possesses unlimited sovereignty. The nearest approach to Parliamentary sovereignty as we have it in England must be sought, in every such case, wherever the ultimate power of altering the written constitution is placed by the constitution itself. In the United States, for example, this amending 1 A. V. Dicey, The Law of the Constitution. Mr. Dicey is, I believe, the first writer who has clearly pointed out that the vital difference is not between federal and centralised governments. It is true that a federal constitution must be rigid, or it will not be truly federal. But a non-federal state may equally well have a rigid constitution, though it need not; and many, probably the majority, have. Ill 261 SOVEREIGNTY IN ENGLISH LAW power is exerciseable only with the consent of three-fourths of the States expressed either by their legislatures or in special conventions, and, moreover, no State can be deprived of its equal suffrage in the Senate without its own consent.1 The English doctrine of absolute sovereignty is not capable of being usefully applied to constitutions of this type. In fact it is a generalisation from the " omnipotence" of the British Parliament, an attribute which has been the offspring of our peculiar history, and may quite possibly suffer some considerable change within times not far distant. Such a constitution as that of the United States or of Switzerland may be said to give a definite meaning to the sovereignty of the people, as opposed to the power or caprice of transitory majorities. Note to p. 253 A case on the privileges of the Chancellor of Oxford is reported at considerable length in the Year Book of 8 Hen. VI., p. 18. The question was whether a certain charter of Richard II. purported to empower the Chancellor to act as judge in cases where he was himself a party, and if it did, whether such a grant was good. At p. 20, Rolf, of counsel for the Chancellor, is reported to have said :— "Jeo vous dirai im fable [in medieval usage 'fable' is merely 'story,' whether believed by the speaker to be 1 Const, of U. Art. v. 262 FIRST BOOK OF JURISPRUDENCE chap, hi true or false]: En ascun temps fuit un Pape, & avoit fait un grand offence, & le cardinals vindrent a luy & disoyent a luy, Peccasti, & il dit, Judica [sic] me: & ils disoyent, non possumus, quia caput es Ecclesiae, judica te ipsum: Et FApostoP [apostolicus, a common synonym for the Pope] dit, Judico me cremari: & fuit combustus: & en cest cas il fuit son juge demesne, & apres fuit un Sainct: & issint n'est pas inconvenient que un home soit [son] juge demesne," etc. How this tale came into England I know not. The legend of a Pope having deposed himself was, however, current in the Middle Ages. It first appears in the apocry- phal acts of the Council of Sinuessa, where Marcellinus is said to have abdicated or deposed himself for the sin of idolatry (see Dollinger, Die Papstfabdn des Mittelalters, p. 4S). That story was re-told in an elaborate form by Bonitho, an Italian writer of the eleventh century, and the same Bonitho used it, with only slight variations of language, to describe the fact, in itself undoubted, of Gregory VI.5s deposition for simony at the synod of Sutri, a.d. 1046. No other chronicler confirms the alleged circumstances, and Bonitho seems to have introduced them from the older legend for the purpose of supporting the doctrine that the Pope is not subject to any earthly jurisdiction. According to all other witnesses, Gregory VI. was in fact deposed by the Emperor: see Jaffe in Monumenta Gregoriana, Bibl. Per. Germ. ii. 599. But one or two modern writers seem to think Bonitho's story had some foundation in fact: Bax- mann, Die Politik (lev Ptipste, ii. 206. CHAPTER IV CUSTOM IN ENGLISH LAW We have already seen (p. 239) that "leges et Custom in the special consuetudines regni" was an accepted name for sense, the Common Law as a whole from an early time.1 In a more limited sense, in which we more usually meet with it in modern books, custom signifies an addition or exception to the general law of the land, established by allowed usage within certain local bounds. The allowance of such special customs is subject to conditions which, according to Sir John Davis's report, were carefully denned early in the seventeenth century by the king's judges in Ireland, when it was decided that "Tanistry," the Irish custom of inheritance, had been abrogated by the introduction of English law. The statement is not strictly of authority, but it has been commonly 1 Cp. Mr. F. A. Greer's article on "Custom in the Common Law," Law Quart. Rev. ix. 153. 264 FIRST BOOK OF JURISPRUDENCE chap. Conditions of validity. quoted in England as a correct exposition of the Common Law. Custom, as understood in law, is usage which hath obtained the force of law, and is in truth a binding law for the particular place, persons and things concerned. Such custom cannot be established by grant of the king nor by Act of Parliament, but is ins non scriptum and made solely by the people of the place where the custom is received. For where people find a certain act good and beneficial, and apt and suitable to their disposition, they put the same in practice from time to time, and so by repetition of such acts a custom is made, and being used from time whereof memory runs not, obtains the force of law. ... In short, custom is a reasonable act, iterated, multiplied and continued by the people from time whereof memory runs not.1 The general conditions required for the validity of a local custom are the following :— 1. The custom must he reasonahle, that is, it must not he repugnant to any fundamental principle of justice or law. A custom is void which purports to enahle an officer of a corporation to give a con- clusive certificate in a matter in which the corpora- tion is interested.2 Customary rights exerciseahle over land must he in some way limited so that they cannot be used to the total exhaustion or destruction of the land in point of value. 2. The custom must have a reasonahle com- 1 Sir J. Davis, 31, 32; cp. Blackstone, Comm. i. 74, 77. 2 Day v. Savadge, Hob. 85. iv CUSTOM IN ENGLISH LAW 265 mencement. This means that it must be capable of being referred to a possible legal origin. 3. It must be certain. For if it could not be reduced to certainty, there would not be any binding rule. 4. It must be ancient. This condition does not seem wholly consistent with the doctrine that custom is made by popular consent; for if so, why should not new rules be made for new circumstances by general consent expressed in habitual action? The historical explanation is that the commence- ment of "legal memory" was left standing at a fixed date by mere accident or inertia.1 But perhaps the matter is of no considerable importance in prac- tice; for the truth is that in modern times there is a demand for express regulation as soon as there is any decided bent of opinion. Except in matters outside the scope of positive law, the formation of custom belongs to an archaic stage of legal history. 5. The usage which establishes a custom must be continuous, that is, free from interruption by acts inconsistent with the right claimed by force of the custom; and it must be exercised as of right, that is, the custom must be regarded by the persons concerned as a binding rule and not a matter of 1 Blackstone, Comm. ii. 31, and Christian's note. 266 FIRST BOOK OF JURISPRUDENCE chap. individual choice. Continental writers express this requisite by the term opinio necessitatis} Examples True ancient customary law of this kind is to of ancient custom. be found in local customs of inheritance and customary tenures; also some local jurisdictions had singular privileges and incidents even in relatively modern times. Down to the middle of the seven- teenth century the men of Halifax had a customary jurisdiction extending to capital felonies, and in- cluding the execution of the sentence by means of a : the defendant must expressly traverse the plaintiff's claim and not merely allege a right in himself inconsistent with it. 2 See Sir James Stephen's account of this in his History of the Criminal Law of England, i. 265. 3 Busker v. Thompson (1846), 4 C.B. 16 L.J. CP. 57, where the Court did not decide on the validity of the custom. iv CUSTOM IN ENGLISH LAW 267 with the term "Lammas land" are also typical examples of this kind. There is every reason to believe that in many cases they are really of high antiquity. Customs of this class, however, have in many modern cases had effect given to them, not as true local laws, but as having been tacitly adopted as terms or conditions of an agreement. This will be further mentioned below. The importance of local customs is steadily diminishing in modern practice, except so far as it may be needful to rely on custom in establishing rights of common and the like, which of late years (since about 1865) have been brought into con- siderable prominence again. Another use of the term "custom " is to denote ri , Custom m rules that once formed an exceptional body of law, sense of x J rules now but have been adopted within historical times as incorpor- x ated iu the part of the Common Law. Sometimes it is also general law. applied to the reception of a special law, as civil or canon law, within particular jurisdictions; in this connection it either means nothing but the practice of the court exercising such jurisdiction, or it is an euphemistic device to avoid any plain admission of the fact that the Common Law, the law of the king's superior courts, was at one time only one among several systems of law claiming obedience 268 FIRST BOOK OF JURISPRUDENCE ohap. each within its own sphere.1 In the medieval conception of legal order, custom might just as well be personal as local; it might be the usage of a trade or condition of men as well as of a manor or a city. There was nothing strange in calling even individual habits and predilections by the name of custom.2 In one case, to use Blackstone's words, "a particular system of customs used only among one set of the king's subjects," namely merchants, and u called the custom of merchants, or lex mer- catoria" 3 has been adopted into the general law and become an extremely important part of it. The law At the very time that Blackstone was putting merchant, ^s Commentaries into their finished form, in the earliest years of the reign of George III., this pro- cess was being accomplished. In the Middle Ages we hear of the Law Merchant as something different from the Common Law, which is administered by special tribunals under the authority of the Chan- cellor, especially for the benefit of foreign merchants resorting to England.4 At that time the "custom 1 Blackstone, Comm. i. 79, 80. 2 See this in Sir T. Malory's Mode cV Arthur t passim. 3 Comm. i. 75. 4 ':This suit is brought by an alien merchant, who has come here by safe conduct, and he is not bound to sue according to the law of the land for to await the trial by twelve men and other formalities, but he shall sue here [before the King's Council in IV 269 CUSTOM IN ENGLISH LAW of merchants" meant the actual usage of the European commercial world as it then was, which was not too large a world to have pretty uniform rules and understandings. In the seventeenth century we find actions on bills of exchange brought in the king's courts, and the custom of merchants specially pleaded as a kind of personal law binding upon the parties. Thus it came before the ordinary tribunals, but as a thing to be specially proved in every case.1 Only in the eighteenth century the decisive step was taken of treating the rules of the law merchant as within the knowledge of the judges, like the general law of the land, after they had once been recognised by considered decision. Proof was now neither required nor allowed. "When once solemnly settled, no particular usage shall be ad- mitted to weigh against it," said Lord Mansfield in 1761, declining to make any question, upon evidence of this or that merchant's opinion, of the negotiable the Star Chamber], and it shall be determined according to the law of nature in the Chancery . . . [and the King's jurisdiction over them is] secundum legem naturae, called Iry some the Law Merchant, which all the world over is an universal law." So Booth, Bishop of Durham and Chancellor, is reported to have said in 1474: Y.B. 13 Ed. IV. 9, pi. 5. (This is the case in which the doctrine of larceny by a bailee "breaking bulk'1 was introduced.) 1 The early history of the Law Merchant in England is still far from perfectly known. Mr. John Macdonell's Introduction to Smith's Mercantile Law, ed. 1890, gives the best general account. 270 CHAP. FIRST BOOK OF JURISPRUDENCE quality of a bill payable to order and indorsed over without express restriction. "People talk of the custom of merchants," added Sir Michael Foster. "This word Custom is apt to mislead our ideas. The Custom of Merchants, so far as the law regards it, is the Custom of England ... we should not confound general customs with special local cus- toms." 1 It is interesting to notice that this decision was reported by none other than Blackstone himself. Not quite a generation later (1787), Justice Buller said in a renowned mercantile case:2 Before that period [i.e. about 1750] we find that in courts of law all the evidence in mercantile cases was thrown together; they were left generally to a jury [i.e. the rules were treated as matter of usage to be proved by evidence, without distinction of law and fact], and they produced no established principle. From that time we all know the great study has been to find some certain general princij^les which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard these principles stated, reasoned upon, enlarged, and explained, till we have been lost in admiration at the strength and stretch of the human understanding. More than a century has passed since these 1 Edie v. East India Co. 1 W. Bl. 295. 2 Lichbarrovj v. Mason, 1 Sm. L.C. 10th ed. at p. 685. The case is given only in an abridged statement in 1 Revised Reports, 425: see the reasons for this course in Mr. Campbell's note at p. 427. IV 271 CUSTOM IN ENGLISH LAW words were spoken, and the development of the law merchant as part of the Common Law of the English-speaking world has continued without ceasing. Being thus embodied in our system of legal precedents, it has inevitably lost something of its closeness of touch with actual mercantile practice. It is as much "scientific" as any other branch of English case-law, and the reasoning of trained lawyers on the settled rules of the law merchant does not always bring out results which appear to men of business to satisfy the require- ments of commerce. Yet the ancient character of the law merchant has not wholly disappeared, for evidence of living general usage is still admissible to add new incidents to its contents provided that they do not contradict any rule already received.1 Thus the whole law of bankers' cheques (which only of late years have become common outside English- speaking countries) is founded on comparatively recent usage.2 In this department the rule of antiquity has no place. 1 Cur. per Cockburn, C.J., in Ex. Ch. Goodwin y. Robarts (1875). L.R. 10 Ex. 337, 346, 352-3. The decision was affirmed by the House of Lords, 1 App. Ca. 476, but this point was not expressly dealt with. 2 L.R. 10 Ex. 351. Even among English-speaking men of business there are divergences in modern practice. Thus the use of crossed cheques is unknown in the United States. 272 CHAP. FIRST BOOK OF JURISPRUDENCE Usage of In yet another class of cases we meet with the the country or of trade word "custom." This is where a general and well read into contracts understood usage in a particular district, or among of parties. persons carrying on a particular kind of business, or dealing in a particular market, has been allowed, not indeed to impose a positively binding law, but to affect, and sometimes to affect very materially, the interpretation of contracts made by parties who are presumed to have done their business with tacit reference to such usages. Proof of a "custom of the country" or "custom of trade" is admissible not merely to determine the meaning of expressions used in a special sense, but to add whole new terms to contracts.1 This perhaps goes near, in some applications of the principle, to evading the con- ditions required for the establishment of customs in the strict sense; although it seems to have been at one time supposed that those conditions must be satisfied.2 But the principle, as now understood, is simply to give effect to the intention of the parties, and any indication of a contrary intention will exclude the so-called customary construction of the 1 See authorities referred to in Anson, Law of Contracts, 8th ed. 264, 265. 2 In the leading case of Wigglesworth v. Dallison, Doug. 201, 1 Sm. L.C. 10th ed. 528, the usage relied on and upheld by the Court was pleaded as an ancient custom. IV 273 CUSTOM IN ENGLISH LAW terms, or customary additional terms, as the case may be. The present writer has suggested elsewhere that it might be better not to use in this connection the word "custom" or at least to speak by pre- ference of "usage." 1 We have here to do with a canon of interpretation, not with a distinct source of law. 1 Principles of Contract, 6th ed. p. 240. Sir W. Anson (loc. cit.) appears purposely to avoid the word "custom." T CHAPTEE V LAW REPORTS [Cp. "The Reporters arranged and characterised with incidental remarks." By John William Wallace. 4th ed. by F. F. Heard, London, 1882, cited as Wallace on the Reporters; Kent's Comment- aries, Lect. xxi'. ; and Dr. H. Brunner's "Essay on the Sources of the Law of England" in the Introduction to HoltzendorfT's Eiwyklopadic der Rechtsivissenschctft, translated by W. Hastie, Edinburgh, 1888. Accounts of the better known reporters may be found under their names in the National Dictionary of Biography-, and also, as to those who were or afterwards became judges, such as Sir Edward Coke, in Foss's Biographia Juridica. London, 1870]. wiiat are Coke, in the Preface to the Sixth Part of his reports. Reports, suggests that Moses was the first reporter. The case of the daughters of Zelophehad, narrated at the beginning of the 27 th chapter of the Book of Numbers, is not cited by him in this connection, though he cites it elsewhere 1 to show that "in this point, as almost in all others, the Common Law 1 Ratcliff's Ca. 3 Rep. 40a, b: "This case seemed of great difficulty to Moses, and therefore, for the deciding of that question, Moses consulted with God." chap, v LAW REPORTS 275 was grounded on the law of God." That case is stated with great clearness, and expressly as a binding precedent, and moreover it was actually vouched within quite recent years by the Jews of Aden when they petitioned the Government of India to be excluded from the Indian Succession Act.1 Law reports, however, cannot exist in any proper sense unless and until the habit of relying on decided cases for guidance, and bringing them before the courts in argument, has become well settled. The Eoman lawyers, as we have said, relied (with strictly limited exceptions) not on decisions but on opinions. Accordingly the litera- ture of Eoman law contains nothing answering to our reports; while a few volumes of collected arguments and opinions like those of Fearne and ITargrave are the nearest analogy we can show to one important class of the materials out of which the Corpus Juris was framed. Eeports, again, must be distinguished from the official records of the court itself. These are kept for the purpose of establishing the rights of parties in each particular case, or justifying whatever acts may have to be done in execution of the judgment. They are not intended, in the first line, for the general use or 1 Mr. (now Sir) C. P. Ilbert in Law Quart. Rev. v. 367-6S. 276 FIRST BOOK OF JURISPRUDENCE chap. instruction of lawyers, and they may or may not indicate on their face the reasons of any decision or the points of law that were in issue. The Botuli Curiae Begis published by the Eecorcl Com- mission in 1835, and the supplemental publication of Eolls of Eichard I/s time, edited by Mr. Maitland,1 carry us as far back in the records as 1194. These are the earliest consecutive judicial records known to exist anywhere. Narratives of legal proceedings, on the other hand, occur in chronicles as incidents in the general history. Thus the chronicler of a religious house naturally made mention of lawsuits in which the interests of the house, or of the order, were involved. Notices of this kind may be of considerable value: Mr. M. M. Bigelow has collected a goodly number of them in his Plaeita Anglo-Normannica? Still they are not reports as the term has been used by English- speaking lawyers for three centuries or more. Ee- porting begins when cases are collected of set purpose for professional use and study, and may be said to be full-grown when learned persons make it their business to attend the courts and take notes, 1 Publications of the Pipe Roll Society for 1891. 2 Plaeita Anglo-Normannica: law cases from William I. to Eichard I. preserved in historical records. By Melville Madison Bigelow, London, 1879. V 277 LAW REPORTS for that purpose, of such cases as appear to them likely to be useful. The book now known as Bracton's Note book, Origins in England: and edited by Mr. F. W. Maitland,1 may perhaps Bracton's fairly be reckoned a book of reports. If so, we may claim for Bracton, under whose direction and for whose use it was almost certainly compiled, the honour of having been the first of our reporters as well as the first methodical English text-writer. The contents of this book "may be briefly described as transcripts of entries on the judicial rolls of the first twenty-four years of Henry III.,"2 that is, from a.d. 1218 onwards. Entries of this early period give us, for reasons which are part of the substantive history of the law, much fuller infor- mation as to what really happened in court than the more elaborate and formal pleadings of the later common-law system. The only thing which need make us hesitate to call the Note Book a book of reports is the absence of any indication that it was meant to be communicated to the profession in general, or used by Bracton himself otherwise than 1 Bracton's Note Book. A collection of cases decided in the King's Courts during the reign of Henry III., annotated by a lawyer of that time, seemingly by Henry of Bratton. Edited by F. W. Maitland. London : Cambridge University Press Warehouse, 18S7. 3 vols. 2 Maitland, op. cit. i. 63. 278 FIRST BOOK OF JURISPRUDENCE chap. as material for his treatise on the laws of England. It is really half way between reporting and the "common placing" of later times. Much later, and in a roundabout fashion, part of the matter contained in the Note Book passed into English legal literature. Mr. Maitland has shown that the cases of Henry III.'s reign noted in Fitzherbert's Abridgment, the main repertory of case-law for sixteenth century lawyers, were derived from the Note Book.1 The Year There is no proof that reports of cases were Books. taken down at the time, for ordinary professional use, before the late years of the thirteenth century. Sir John Davis, in the Preface Dedicatory to his Reports (1628), accepted as literal history what Chaucer says of the Serjeant-at-law in the Prologue to the Canterbury Tales: In termes had he case and domes all, That from the time of king Will, were i-fall. But we must take this as a poetic and humorous exaggeration; for if Chaucer's contemporaries had really possessed anything like a set of reports going back to the twelfth century, it is not very likely that they would have all perished, and most 1 Bracton's Note Book, i. p. 117. V 279 LAW REPORTS unlikely that we should not have heard of their existence from any other writer.1 From the year 1292 we have a series of reports of cases decided, partly by Edward I.'s judges on their circuits "in eyre/' partly before the Courts at Westminster. By good fortune these reports of Edward I.'s reign remained imprinted until within recent times. They were edited by the late Mr. Horwood with excellent care and skill, and furnished with an English translation. Here, and in Mr. Nichols's edition of the contemporary text-book known as Britton—a model of such work—a student may best make himself familiar with the Anglo-French which was the official language of the Courts down to the fourteenth century, and in which reports were written as late as the close of the seventeenth. The language of Britton and the earlier Year Books is far from being corrupt French or a mere jargon. For quite three centuries after the Norman Conquest French wTas the current speech of gentlefolk in England. Being transplanted into England from Normandy, and continuing to live as a true French dialect, it developed genuine peculiarities of its own, as Dr. Murray has shown in his Introduction to the Oxford English Dictionary, and Mr. Skeat in 1 Cp. Horwood, Preface to Year Book, 30 & 31 Ed. I., p. xvi. 280 FIRST BOOK OF JURISPRUDENCE chap. the second volume of his work on English Philology (1891). When Chaucer's Prioress spoke French After the scole of Stratford atte Bo we she was not aiming at Continental French; she was naturally using the Anglo-French in which she had been brought up. But the following line: For French of Paris was to her uriknowe seems to show that the transfer of the English con- nection with France from Normandy to Acjuitame, and the development of her Continental power and policy under the Plantagents, were in Chaucer s time fast assimilating the French of England to the standard of France. It was old-fashioned and perhaps even slightly ludicrous to speak Anglo- French in good society, and the dialect, condemned to linger in an obscure and artificial life, became ungrammatical and poverty-stricken, and expired in the latest reports of the Eestoration period as an ignominious jumble of corrupt French eked out with Latin and English. Before proceeding to any further account of the Year Books, it may be useful to give a specimen of the language in its several stages. V 281 LAW REPORTS Living Anglo-French, Thirteenth Century, Y.B. 20 Anglo- French and Ed. I. (a.d. 1292), pp. 192-3. its de- gradation. Howard [arguing]. Sire, par ceu fet ne put yl vocher; par la resone ke al oure qant ce fet fut fet, sy fut le Koy Henri, ke dunke fut, en prison: e desicom le governour e le chef de leis fut en prisone, sy fut la ley en prisone, issi ke a eel oure qant le fet &c. ne aveit yl nule ley; par quey le fet et le feffement est nul en sei. Sir, he cannot vouch by this deed; for the reason that at the time when this deed was made, King Henry [III.], who then was, was in prison: and inasmuch as the governor and the head of Law [lets = leges, sc. leges Angliae] was in prison, the law itself was in prison: so that at that time when the deed [was made] there was no law: therefore the deed and the feoffment is void in itself (Horwood's Transi.). This, it will be seen, is pure and grammatical French. The language of the treatise Le Court de Baron, probably of the early fourteenth century, published by the Selden Society, is very similar. Decaying Anglo-French, Sixteenth Century, YB. 12 Hen. VIII. (a.d. 1520), p. 3. (The question was whether it was a trespass to take "unum canem vocatum a blood-hound.") Newport and Newdigate [arguing]. Semble que toutes fois ou on a ascun tort ou damage, la ley done a luy un remedy, et ceo per voye daccion; donq icy, il y ad fait a moy damage per cet prisel, car cornent que cet chien soit chose de plaisir, imcore il est profitable pur hunting, ou pur ma recreation. Car si i'-ày un popingay ou thrush, que chante 282 FIRST BOOK OF JURISPRUDENCE chap. et refraische mes esprits, ceo est grand confort a moy, et donq si ascun prend ceo de moy, il fait a moy grand tort. It seems that whenever a man has wrong or damage, the law gives him a remedy, and that by way of action: here then is damage done to me by this taking, for although the dog be an object of [mere] pleasure, yet he is profitable for hunting, or for my amusement. For if I have a popin- jay or thrush which cloth sing and refresh my spirits, this is great comfort to me, and so if any one take it from me, he doth me great wrong. Here the French is an artificial version of what was really said in English in Court. The grammar and inflections are degraded (the contracted termina- tions often prevent one from seeing exactly how far the degradation had gone), and now and then the reporter puts in an English word rather than be at the pains of finding the French equivalent, but still it may be called French of a sort. The French of Plowden's Reports (a.d. 1578) is, if anything, better than that of the latest Year Books; Plowden, however, was an exceptionally learned writer. The same may be said of Sir John Davis, in whose reports of Irish cases, elating from the early part of the seventeenth century, the language is not sensibly better or worse. By this time it was a purely conventional written language, and probably no attempt was made to observe any true French pronunciation when there was occasion to read V 283 LAW REPORTS passages from the Year Books or early Statutes in Court, or when arguments were conducted in law-French in the Inns of Court, as they still sometimes were as late as the Eestoration.1 Degenerate Anglo-French or "law-French" Seven- teenth century. Eolle's Reports, i. p. 189. Coke: Ceo n'est d'estre fait nisi request soit fait, come si jeo soie oblige a paier un somme al jour certein sur request ceo n'est ascun dutie devant request (R. [i.e reporter]. Qurere ceo car Haughton semble a disallower ceo, car il shake son capit [sic] al ceo). Dyer's Reports, 1886, in the notes added in ed. 1688. Pas. 37 Eliz. Carnes drew his sword sur le stairs de Court de Requests que est hors de view de ascun des Courts, & la si son indictment ad estre bien drawn il duist aver le punishment come icy. Richardson, ch. Just, de C. Banc al Assises at Salisbury in Summer 1631. fuit assault per prisoner la condemne pur felony que puis son condemnation ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit Indictment drawn per Noy envers le prisoner, & son dexter maims ampute & fix al Gibbet sur que luy mesme immédiate- ment hange in presence de Court. This, it is needless to point out, is the last stage of corruption. All pretence of conformity to French grammatical forms or of preserving a 1 Dugd. Orig. Jitrid p. 209. 284 FIRST BOOK OF JURISPRUDENCE chap. substantially French vocabulary has disappeared. "Patres conscripti took a boat and went to Philippi" is as much Latin as this stuff is French. Such a jargon had nothing left for it but to perish. The folio The Year Books which were printed earlier than Year Books those of Edward L have fared much worse. They were published at various dates from 1561 onwards, but the collected folio edition of 1678-9 has super- seded the earlier ones for all purposes except those of the curious bibliographer. It is, however, any- thing but conformable to the modern standard of editing or satisfactory in use. The size is cumbrous, and the Gothic type, which was retained in law- books, for no sensible reason, long after Boman type was generally adopted, is unpleasant to the eye. Words that were abbreviated in the MSS. are printed in the same fashion, and moreover there is great reason to doubt whether the MSS. were read and reproduced with adequate care either in the matter of abbreviations or otherwise. A new critical edition would be a great help to the historical study of the Common Law, and might quite possibly throw light on principles which have not ceased to be of practical importance, but there does not seem to be any near prospect V 285 LAW REPORTS of it. Meanwhile the reports of several years of Edward III. which were not included in the old editions have been edited by Mr. L. 0. Pike in the Record Office Series, in continuation of Mr. Horwood's work. Five volumes (1883-91) have so far been published. Mr. Pike's and Mr. Hor- wood's labours now make it possible for a student to acquaint himself with the language and style of the Year Books much more readily than he could have clone a generation ago. The Year Books are not elementary reading, and are not very often referred to in court nowadays, though oftener than they were fifty or sixty years ago. Many lawyers in good business have never read a word of them, and would barely know how to refer to them. Yet some knowledge of them is needful for every one who wishes to know the law as a scholar and not merely as a practitioner; and those who pay special attention to the law of real property not unfrequently find such knowledge useful in practice. Kent's opinion, expressed less than seventy years ago,1 that the Year Books "are not worth the labour and expense either of a new edition or a translation" has been refuted, instead 1 His Preface to the first volume of Commentaries on American Law is dated 23rd November 1826. 286 CHAP. FIRST BOOK OF JURISPRUDENCE of being confirmed, by subsequent experience on both sides of the Atlantic. The reports in the Year Books have every appearance of being notes taken in court and written out without much revision; there is no trace of the judges or officers of the courts having been consulted, or the records inspected,1 or the spelling of proper names verified. According to a professional tradition which was accepted by Bacon and Plowden, and must in their time have been capable of first-hand verification, the Year Books were the work of official and paid reporters appointed by the Crown; which does not seem inconsistent with the rough quality of the work. It must be remembered that even in the time of Henry VIII. printing does not appear to have been contemplated by the reporters. Bacon endeavoured, and with apparent success for a time, to have the institution of official reporters revived, but next to nothing came of it.2 We are not told why the system of the Year Books, such as it wTas, had come to an end. 1 See Bro. Ab. Executor, pi. 22, for an example of the actual judgment in a case being misreported. 2 Wallace on the Reporters, pp. 270-1; cp. the Preface to 1 Douglas. The order made in 1617 for the re-establishment of official reporters may be seen in Rymer's Focdcra, vol. xvii. p. 27. The reports were to be reviewed by the judges and submitted to the Chancellor. LAW REPORTS 287 When unofficial reports were first printed, it The earlier private was with apologies and professed reluctance. The reports, learned reporter assures us that he took notes in court only for his- own use, but his friends must needs borrow and copy them; then he was en- treated to publish; and while he was hesitating, he learnt that some bookseller would bring out a piratical and probably corrupt edition if he did not without more loss of time bring out an authentic one. Such is Plowden s story in the Preface to his Reports, dated 1578, which served as a model for many others. Doubtless MS. notes of cases were freely handed about among barristers and students, as lecture-notes are to this day in the universities; Coke alludes to this practice when he says in the Preface to the First Part of his own Reports—" I like not of those that stuff their studies with wandering and masterless reports." As late as 1765 Sir James Burrow wrote in the Preface to his Reports—" I found myself reduced to the necessity of either de- stroying or publishing these papers (which were originally intended for my own private uses and not for public inspection)." Later still, in 1789, Kirby of Connecticut, the father of American reporters, declared that he "had entered upon this business in a partial manner, for private use." Dyer's Re- 288 FIRST BOOK OF JURISPRUDENCE ports, first published in 1585, fifteen years before the earliest of Cokes, are the leading example of posthumous collections made up from materials not published by the reporter in his lifetime. Such collections have been of the most various degrees of merit. Wallace on the Reporters is the best guide to a critical appreciation of the earlier books of reports. It may be said in general terms that the work of the Elizabethan reporters exhibits technical merit of a high order, though it cannot be said to be rich in literary skill, and the reporter's private opinions are introduced in a manner and to an extent we should now think unwarranted. Com- parison of different reports of the same case may be found to suggest that some reporters, and especially Coke, went very far in editing the resolutions of the court in accordance with their own notions of what was correct. In the seven- teenth century the merits of reporting fell off sadly; and the "thin squadron of flying reports" that came forth in the latter part of that century and the earlier years of the eighteenth are with few exceptions of poor quality, and certainly include the worst work of the kind ever done. Lord Holt on one occasion was moved to say of a specially V 289 LAW REPORTS bad example—"See the inconveniences of these scambling reports; they will make us appear to posterity for a parcel of blockheads."1 While the Year Books are now more used and cited than they were fifty years ago, references in court to the minor reporters of the Commonwealth and Eestora- tion times have become exceedingly rare. From the end of the Year Books to the last quarter of the eighteenth century, that is, for more than two centuries, there was no continuous provision for reports being taken or preserved at all. Sir James Burrow's Bcports, dating from 1756 Commence- ment of and first published in 1765 (which was also the modem reporting. year of publication of Blackstone's Commentaries), may be considered the earliest of the modern type. From that time the Court of King's Bench and its successors have never wanted a reporter; we can go back year by year without a break from the current Queen's Bench Division part of the Law Beports to the first volume of Burrow. In the Court of Common Pleas and in Chancery the succession was established a score of years later, and in the Court of Exchequer (then much below the others in dignity and repute) only many years later still. Burrow had something to say of his 1 2 Ld. Raym. 1072. U 290 CHAP. FIRST BOOK OF JURISPRUDENCE method of reporting, but the Preface to Douglas's Reports (by Sylvester Douglas, afterwards Lord Glenbervie), written in 1782, contains the earliest deliberate discussion of the reporter's office and art with which I am acquainted. During the century which followed the commencement of Sir James Burrow's Reports, law reporting was carried on by the private enterprise of publishers and of the barristers who prepared the reports under agree- ments with them. The reports in each court were a separate publication, and sometimes two rival series were carried on in the same court; and besides these there were legal periodicals which collected reports from all the courts and published them more promptly and cheaply, though in a less elaborate form, than the reports known as " regular" or " authorised." These epithets do not mean, in English pro- fessional usage, that the judges make themselves answerable for the accuracy of the report in detail, or undertake not to dispute its accuracy, but only that the judges are willing to give the reporter such assistance as they can by revising their oral judg- ments and furnishing copies of their written ones before publication. It was formerly understood that an "authorised" reporter had some sort of v LAW REPORTS 291 moral claim to the exclusive benefit of these privileges in the court to which he was attached/ but of late years many of the judges, if not all, have given equal facilities to two or more competing sets of reports, in which case they must all be deemed to be equally authorised. It is hard to say when the practice of judges revising their own reported judgments for publication was first heard of, or became usual. But it seems certain that it had not arisen in 1782, for at that date Douglas, in the Preface to his Reports, dwelt in some detail on the precautions he had taken to ensure accuracy, but did not speak of having received or sought any assistance from the judges. Attempts were made in the eighteenth century, as may be read at large in Wallace's book, to establish a kind of judicial scale of merit among published reports, and not only to discountenance but to forbid the citation of sundry books of inferior repute. This kind of censorship was obviously liable to abuse, and has long been obsolete. It is now understood that the only indispensable condition for any report of a decided case being admitted to citation is that it must be vouched for on the face of it by a member 1 See Sir John Romilly's letter as to the position of Mr. Beavan as authorised reporter in the Rolls Court, published in the Preface to 34 Beav. at p. 8 ; see also Law Quart. Rev. vi. 342, n. 292 CHAP. FIRST BOOK OF JURISPRUDENCE of the Bar who was present at the decision. But in case of divergence between different reports of the same judgment, the "authorised" report is taken to represent the deliberate expression of the judge's opinion: for a judge may say things in the course of an argument, and even in judgments delivered without preparation, which he does not wish, on reflection, to be permanently recorded.1 Even in the early part of this century it was still not uncommon to refer to private notes re- maining in MS. in order to supplement or correct the older reports.2 Such an occurrence is now most rare, if indeed it is known at all. The records of the court itself, however, always may be and pretty often are referred to when it is material to verify the exact form of a judgment or order which does not appear in terms in the published report. In many American States, and in some British possessions, the judges of superior or appellate courts are required by law to give their judgments 1 James, V.-C, in Leather CloM, Co. v. Lorsont, L.R. 9 Eq. at p. 351. • 2 See Lord Eldon's remarks in Sidney v. Miller (1815), 14 R.R. at p. 250: "He had not been able to find anything amongst his own manuscript cases, but he had been favoured by Mr. Eden with a manuscript note of Lord Northington's of what Lord Hardwicke said in Bro wn v. Jones; and which the Lord Chancellor read to the Bar." v LAW REPORTS 293 in writing. This makes the reporter's office much easier, for orally delivered judgments, however excellent in substance, usually need a considerable amount of editing to bring them into an acceptable written form. The reports issued by disconnected private enter- Founda- tion of prise were, with few exceptions, good enough in the Law Reports. substance, and some were very good indeed; but they were costly, bulky, and dilatory, and, as Lord Justice Lindley has said, "the waste of labour, time, and money was prodigious."1 In 1863 the English Bar took the matter into their own hands, and the labours of a committee appointed to consider what could be done resulted in the establishment of the Council of Law Reporting, a directing body which represents the Inns of Court, and now also the General Council of the Bar. From 1865 onwards the Law Beports have been carried on by the Council in the interest of the profession as a co-operative and self-supporting enterprise.2 The example set by the English Law 1 Law Quart. Rev. i. 138. More detail will be found there, and in the late Mr. Daniel's History and Origin of the Law Reports, London, 1884, of which the Lord Justice's article was a review. 2 Most of the existing "authorised " reporters joined the staff of the Law Reports at once; a few of them held out for a year or two, but one may say broadly that the Law Reports absorbed and super- seded the old ''authorised " reports with remarkable completeness and with all but universal approval. It was no part of the scheme, 294 CHAP. FIRST BOOK OF JURISPRUDENCE Eeports was in course of time followed in Ireland, and to a certain extent in British India. Arrange- ments analogous, in varying degrees, to those of the English "authorised " reports exist in the Federal and State jurisdictions of the United States, and in the larger self-governing British Colonies. In America " the reporters of the Supreme Court of the United States and of most, perhaps of all, the State Courts of last resort, are public officials duly elected or appointed,"1 and accordingly the reports are constantly described as official, a term which English lawyers have avoided. Bulk of Sir Edward Coke, in the Preface to the Third English and Ameri- Part of his Reports, estimated the number of volumes can case- . law. of reports then m existence at fifteen. About the beginning of the eighteenth century "a country lawyer who was afterwards advanced to the seat of justice" is said to have complained that "when he was a student he could carry a complete library of books in a wheelbarrow, but that they were so wonderfully increased in a few years that they could not then be drawn in a waggon." 2 Now the however, to set up an official monopoly of reporting, and other competing series continued and still continue to be published, and to be preferred to the Law Reports, for various reasons, by a certain number of the profession. 1 Wambaugh, The Study of Cases, 2nd. ed. 1894, p. 109. 2 Pref. to 5 Mod. p. xi. V 295 LAW REPORTS waggon would be as much out of date as the wheel- barrow. The volumes of reports are something over eighteen hundred if we count English reports alone, and come to two thousand if we add the Irish ones. It is said that the various jurisdictions of the United States have already produced something like double this number. Making a rough allowance for the reports of British India and the English-speaking Colonies, we shall not be far wrong in saying that on the whole there are now in print not far from eight thousand volumes of reported decisions.1 1 Cp. Dillon, Laws and Jurisprudence of England and. America, Boston, Mass. 1894, p. 265. The statement as to American reports is founded on the estimate there given ; but Judge Dillon gives for the English ones a much larger number than I have obtained as the result of an independent verification. It does not appear from what source his figure of 2944 volumes as existing in 1881 was derived. My own round numbers to the end of 1895 are: English "regular" reports from the Year Books, inclusive, 1000 volumes Law Reports and other periodical reports, 625; Crown Cases, Criminal Law Reports, and State Trials, 170 ; other reports of special classes of cases, about 30: total 1825. Irish reports, 185; Scottish (which belong, however, to a different system of law), 290. This makes for the United Kingdom a total of about 2300. There are some reports of County Court cases, but these ought not to be reckoned, as the decisions of inferior courts may not be quoted as authority. The same may be said of a mass of individual reports of separate cases, collections of celebrated trials, and so forth, which might considerably swell the total if admitted, but of which only a small proportion are properly authenticated reports of authoritative decisions. Inclusion of such publications may perhaps account for the largeness of the estimate adopted by Judge Dillon. The Revised Reports, now in their 25th volume, are not counted here, as they are not an addition to the existing reports, but a reprint omitting obsolete matter. 296 FIRST BOOK OF JURISPRUDENCE chap. Of course no one can pretend to be familiar with more than a small fraction of this enormous litera- ture. In practice a modern lawyer is content to know the current authorities of his own generation and country, and within his own range of work, and a select number of the older decisions on principles of general importance. All the reported English cases likely to be wanted for any ordinary professional purpose at this day might probably be contained in about one hundred and fifty volumes of the size of the Law Eeports, and the number which any one man has found it needful or useful to read carefully might possibly fill, at a rough guess, twenty or twenty-five such volumes. It must not be forgotten that even among the earlier books many cases are reported twice or oftener by different reporters, and in modern times we have series of rival reports which, although they differ more or less in their selection of cases, have a great part of their matter in common. Thus the total substance of reported cases is not quite so huge as it seems. But it is sometimes needful, if there is doubt as to the facts or as to the exact language used by the court, to compare all the known con- current reports of a case, and therefore it cannot be said of any volume of the reports, even those of V 297 LAW REPORTS inferior authority, that a lawyer may not at some time have to refer to it. The peculiar difficulties of studying Anglo- Use of authorities. American law lie, on the whole, not so much in the actual amount of reading that is required (which is probably not greater than in the case of any other learned or literary calling) as in the dispersion of the materials, the rapid accession of new matter and obsolescence of old, and the elaborate apparatus of reference rendered necessary by these conditions, which can itself be used with full effect only after a certain amount of professional training and experi- ence. Every student should accustom himself as soon as possible to the process of ascertaining and verifying, with the help of the various indexes and digests, the authorities available on a given point of law. Lists of the English reports, and the abbrevia- tions by which they are commonly referred to, may be found in Fisher's Digest and other works of reference, and in some of the law booksellers' catalogues. A new and, it is believed, a complete or very nearly complete one was issued by the Council of Law Eeporting in 1895.1 1 "Tattles, Alphabetical and Chronological, of all Reports of Cases decided in England, Scotland, and Ireland . . . with a List of the usual Modes of Citation, compiled under the direction of the Council," by Arthur Cane. London: Wm. Clowes and Sons, Ltd., 298 FIRST BOOK OF JURISPRUDENCE chap, v Let the student, above all, remember that in our law text-books are not authorities, with the excep- tion, which in usual practice is seldom material, of the limited number of old books by private writers to which authority in the proper sense has been ascribed. Unverified notes or extracts should never be trusted; neither is it safe to assume that extracts from a case in even the most careful and learned of text-books, though correct so far as they go, and apparently relevant, will suffice for the purpose in hand. The text-writer's purpose may not be the same as yours, and, if it were, the court may not agree with him that the passages he has selected are the only relevant ones. First-hand acquaintance with the authorities themselves is the only safe way. We shall now proceed to inquire more precisely than we have yet done in what sense decided cases are of authority in our courts, and by what rules or understandings the inconvenience of different authorities being found to be in conflict is provided against or diminished. 1895. This includes not only reports fully published before 1865, but serial reports commenced before that date, and continued after- wards. It does not, however, include the periodical reports of cases in all the courts which have for many years been published in connection with legal newspapers. One cannot be sure that this or any other list accounts for all the obscure minor reports, but it is more than sufficient for all practical purposes. CHAPTEE VI CASE-LAW AND PRECEDENTS [Blackstone, Comm. i. 69-73; Kent, Comm. Lect. xxi.; The Laws and.. Jurisprudence of England, and America, by John F. Dillon. Boston, Mass. 1894 (Lects. viii. and x.) ; Judicial Precedents: a short Study in Comparative Jurisprudence, by J. C. Gray, Haw. Law Rev. ix. 27 ; The Study of Cases, by Eugene "Wambaugh, 2nd ed. Boston, Mass. 1894]. As regards the authority of decided cases (which in Authority of de- modern times means, for all practical purposes, cisions: its degrees. reported cases), we have to consider whether they proceed from a superior court of original jurisdiction, or from a court of appeal which is itself subject to a further appeal, or from a court of last resort, that is, a court where decisions cannot be reviewed by any other tribunal. The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself, will be followed in the 300 FIRST BOOK OF JURISPRUDENCE chap. absence of strong reason to the contrary. The strongest of such possible reasons is disregard, by the decision dissented from, of some still higher authority. The decisions of a Court of Appeal are binding on all courts of co-ordinate rank with the court below, and generally, according to English practice, on the Appellate Court itself. As regards a court of last resort, its decisions are certainly binding on all courts of lower rank. Usage differs on the point whether such a court shall treat itself as bound by its own decisions. The House of Lords has gone farthest in this direction; the Supreme Court of the United States, on the other hand, has more than once openly reversed its own previous doctrine; some other tribunals of last resort have not dissented from their own former conclusions except in very special circumstances, but have also not disclaimed the power of doing so. Few definite statements have been made on the subject by persons speaking with authority, and indeed there has not been much explicit statement of any kind; and, in England at all events, there has been no attempt to regulate the usage of the courts by legislation. What is here said is intended vi CASE-LAW AND PRECEDENTS 301 to express the recognised practice and tradition with such approximate exactness as the nature of the case admits of. We shall now illustrate the practice by examples of its judicial declaration or discussion. As early as the middle of the thirteenth century Early statements Bracton, as we have seen, collected and cited de- and dis- cussion. cisions; but there is nothing to warrant us in saying that he regarded them as positively binding on the judges in similar cases arising later. Early in the fourteenth century, however, we find Herle (perhaps the same William de Herle who became a judge in 1320, and Chief Justice of the Common Pleas seven years later) impressing on the court before whom he argues that their decision will be received as authority, and therefore ought to be carefully considered, "for the judgment that you shall now make in this matter will be used hereafter in every quare non admisit in England." 1 This appears to have expressed a view generally admitted, for otherwise we should not find the remark so pointedly reported without any note of dissent from the court, the opposing counsel, or the reporter himself. A century and a half later 1 Year Book, 32 Ed. I. ed. Horwood, p. 33. The question (of which no decision is reported) was whether a plea of three distinct and independent objections to a clerk's eligibility for presentation to a church was allowable or not. 302 CHAP. FIRST BOOK OF JURISPRUDENCE (a.d. 1454) we find Prisot, Chief Justice of the Common Pleas/ laying down from the Bench how inconvenient it would be for the court to disregard the judgments of earlier date. The question was on the construction of a statute, and one reason given is that the judges who were nearer to the date of the statute were more likely to understand it rightly; but the general importance of adhering to precedent is also insisted upon. The young apprentices of the law, Prisot says, will give no faith to their books, if points which they find many times laid down in their books are now to be de- cided the other way.2 A year later we find Prisot, in a discussion among the judges in the Exchequer Chamber, apparently maintaining the authority of precedent against a majority of his colleagues. The judges, as reported, seem to contradict themselves at different stages of the proceedings, but at all events the question whether the court was free to dissent from a recent decision of its own or not was discussed, in the presence of the Bar, but without hearing any fresh arguments from them, with con- 1 In IVall arc on the Bejwtcrs, 4th ed. p. 100, the date of this case is erroneously given as 1444, and consequently (it would seem) Prisot, who was appointed in 1449 and was never a puisne judge, is described as Mr. Justice Prisot and stated to have been afterwards promoted. 2 33 Hen. VI. 41a. vi CASE-LAW AND PRECEDENTS 303 siderable animation, and the reasons given, so far as we can collect them from an evidently imperfect report, are such as might well be given at this day.1 Fortescue, Chief Justice of the King's Bench, seems to have said at one time that he must acquiesce in a series of decisions which he did not approve, although no judge would in his opinion so decide if the point were new. But on the same page he is stated (whether by the reporter himself, or in an aside of Prisot to counsel, is not clear) to have said that, if there had been such a decision as supposed, he did not believe the point had been adequately argued or considered, and therefore did not feel bound to pay much regard to such a judgment: and this seems to have been his latest opinion, for Prisot's contention was ultimately overruled.2 Prisot appears to have given the date of the case he relied upon (" il alleg' deins quel an.") Cokes general statement, in the Preface to the Tenth Part of his Reports, that in olden times the Serjeants and apprentices of the law "never cited any book, case, or authority in particular" is there- 1 34 Hen. VI. 24. 2 The Year Book report is made almost unintelligible by an erroneous statement of the final result, which is corrected in Bro. Ab. Executor, pi. 22, on the authority of the record as vouched by the Court in 23 Hen. VIII. (a year for which there is not any Year Book in print). The law was already settled: see 6 Ed. IV. 1, pi. 1. 304 CHAP. FIRST BOOK OF JURISPRUDENCE fore too wide as it stands in English; the contem- poraneous Latin text, however, has "vix unquam," which leaves room for exceptional cases.1 According to Coke the common form was "it is held" or "it is agreed in our books," "it has been decided in full court," and the like. We must not forget the mechanical difficulty of citing any "book, case, or authority in particular," before the invention of printing; it was not an insuperable difficulty, for some medieval manuscripts are very well indexed; but it was not a trifling one. Modem Having thus shown that the principles which usage: as to co- now guide our courts in following precedents were ordinate authority, in existence four centuries and a half ago, we may come at once to the most modern utterances on the subject. Sometimes it has been thought that judges are positively bound to follow decisions of "co-ordinate authority," that is, the decisions of courts of equal rank and exercising the same jurisdiction, unless obviously contrary to higher authority or the weight of previous equal authority. This was the view taken by the late Sir George Jessel in the earlier part of his judicial career.2 1 In the great case of larceny by breaking bulk, in 1473, Y.B. 13 Ed. IV. 9 (translated in Pollock and Wright on Possession, pp. 134-137), Brian, C.-J., appears to have quoted particular cases much as we do now. 2 Rc Harper and G.E.E. Co. (1875), L.R. 20 Eq. at p. 43. vi CASE-LAW AND PRECEDENTS 305 But some years later, having learnt that the Court of Appeal did not consider a judge of first instance to be so strictly bound, he held himself free to discuss previous decisions of co-ordinate authority on their merits, admitting, however, that "there is perhaps nothing more important in our law than that great respect for the authority of decided cases which is shown by our tribunals/' and that the decision of a tribunal of co-ordinate jurisdiction ought to be followed "where it is of respectable age and has been used by lawyers as settling the law."1 Before the Judicature Acts the different Superior Courts of Common Law, the Queen's Bench, Common Pleas, and Exchequer, treated one another's decisions with respect, but not as authorities precluding discussion.2 It is by no means clear that they even held themselves positively bound by their own decisions while the judges who had pronounced them were living.3 1 Re HcilleWs Estate (1879), 13 Ch. D. at p. 712; Osborne v. Hewlett (1880), ib. at p. 779. 2 Cp. Yaughan 383, where the language is wide. If Yaughan, C.-J., really said that a judge can never be bound to follow an authority with which he personally does not agree, he disregarded the uniform practice of English courts. The language of Brett, M.R., 9 P.D. at p. 98, seems to go a little too far the other way. There is no doubt of the fact that the old Courts in Westminster Hall often took independent lines. 3 Dallas, C.-J., seems to imply the contrary in Cliristie v. Lewis (1821), 2 Brod. & B. 426, 23 R.R. 491. X 306 CHAP. FIRST BOOK OF JURISPRUDENCE Correction Occasionally cases are reported which (whether of manifest error. by some real mistake at the time, or through some omission or misstatement in the report) are, as they stand reported, manifestly contrary to the rules of law as settled and generally understood, or to the uniform tendency of other decisions, the "current of authority" as it is called. Even a court of first instance may disregard obvious aberrations of this kind. It need not and should not throw the duty of correcting them on the Court of Appeal.1 Respect for Where a decision, or still more a series of decisions often acted decisions to the same effect, has been accepted for upon. law and acted upon by many persons, and especially where a rule thus arrived at has become a guide to lawyers and their clients in their dealings with property, the Courts, even Courts of Appeal, are slow to interfere with the rule, and it may perhaps be upheld although modern research has shown that it was originally founded on a mistake; for the reversal of a rule that has been commonly acted upon might well produce an amount of inconvenience greater than any advantage that could be expected from the restoration or establish- 1 e.g. Re KIcebe (1884), 28 Ch. D. at p. 180, where Pearson, J., said of a solitary decision of this kind: "It is unfortunate that the case was ever reported." VI 307 CASE-LAW AND PRECEDENTS ment of a rule more correct in itself. In this sense it is said that "communis error facit ius." 1 Even an erroneous construction of a statute may stand unreversed if it has become, on the plausible authority of a series of decisions, "a law which men follow in their daily dealings."2 For this reason the constant practice of conveyancers has great weight in support of a decision upon which it is founded, and this even in a court of last resort.3 Indeed Lord Elclon said without qualification that in its own subject-matter "the practice of convey- ancers amounts to a very considerable authority " :4 and in the same case Lord Eedesdale pointed out that, if it were not so, there would be great risk of defeating the intentions of parties who had naturally left it to their skilled advisers to express those intentions in a proper form, and whose advisers had used accustomed forms in the sense regularly attached to them in the profession.5 In this eminently scientific branch of the profession, 1 Stourbridge v. Droitwich (1871), L.R. 6 Q.B. pp. 769, 775. 2 Jessel, M.R., in Ex parte Willey (18S3), 23 Cb. Div. at p. 127; and in TFallis v. Smith (1882), 21 Cb. Div. at pp. 265, 266. 3 Lord Hatberley in Bain v. Fothergill (1874), L.R. 7 H.L. pp. 158, 209. 4 Smith v. Earl Jersey (1821), 3 Bligb at p. 444, 22 R.R. at p. 43. 5 3 Bligb at pp. 461-62, 22 R.R. at pp. 55, 56. 308 FIRST BOOK OF JURISPRUDENCE chap. who are as it were the Sappers of the Bar, judicial interpretations of the law, notably the law of real property, are apt to be more freely criticised than elsewhere. Courts of Decisions of a Court of Appeal (in English Appeal. practice since 1875, the one Court of Appeal established by the Judicature Acts) are binding on all courts of inferior authority within the same jurisdiction. The Judicial Committee of the Privy Council has declared it to be convenient and desirable for colonial courts to accept the decisions of the English Court of Appeal as authoritative on the construction, not only of English Acts of Parliament which a colonial court may have to apply, but of colonial statutes repeating in terms (as often happens) the provisions of such Acts.1 It follows that a Court of Appeal not only can reverse or vary decisions from which an appeal is brought, but can overrule previous decisions of courts below which have not been appealed from, that is, can declare or give it to be understood that they were erroneously decided and are no longer to be followed as authority. The Court of Appeal in England does not hold itself free to depart from its own considered decisions or (according to its 1 Trimble v. Hill (1879), 5 App. Ca. 342, 344. VI 309 CASE-LAW AND PRECEDENTS latest utterances)1 from those of the courts of like authority, namely the Exchequer Chamber and the Court of Appeal in Chancery, which existed before it. Quite lately the court has acted on this view.2 But it has held itself not bound by the result of a former case in which the judges present were equally divided; for in such a case "there is no authority of the Court as such." 3 Decisions of an appellate court of last resort are Courts of last resort. binding on all courts from which an appeal lies to it, and, of course, on all tribunals inferior to them. So far what has been said of a Court of Appeal in general is applicable. But the further question arises whether a court from which there is no appeal shall hold itself free to review its own former decisions or not. It may be said on the 1 In 1880 a different view was held: "As a rule, this Court ought to treat the decisions of the Court of Appeal in Chancery as binding authorities, but we are at liberty not to do so where there is a sufficient reason for overruling thern " : Mills v. Jennings, 13 Ch. Div. 639, 648. In the last resort the House of Lords agreed with the Court of Appeal and overruled the earlier decision; they had not, of course, to decide whether the Court of Appeal was strictly entitled to disregard it or not: Jennings v. Jordan (1881), 6 App. Ca. 698. 2 "We cannot overrule Vint v. Pad-get (2 De G. & J. 611)} for that was the decision of a Court co-ordinate in jurisdiction with ourselves": Lord Herschell, L.C. in Pledge v. Carr '95, 1 Ch. at p. 52. Cp. Lavy v. London County Council '95, 2 Q.B. (Lindley, L.-J.). 3 The Vera Cruz, No. 2 (1S84), 9 P.D. 96, 9S, 101. 310 CHAP. FIRST BOOK OF JURISPRUDENCE one side that even the highest court may err, and that if it cannot amend its own errors upon better information or reasoning they may never be corrected at all; for, legislative methods and procedure being what they are and must be, it is for the most part idle to count on legislation for this purpose. On the other side it is said that certainty in the rules of law by which men have to guide themselves is of greater importance than arriving at the rule which is best in itself or most logically harmonious as part of a system. This seems a good reason why a court of final appeal should not decide without full deliberation, and should be slow to disturb any doctrine it has once laid down or approved, but hardly a sufficient reason why it should disclaim any power of correct- ing its own errors in case of need. In the absence of an express constitutional provision, or an unbroken tradition accepted as part of the judicial constitution, it is obvious that all such a court can really do is to declare from time to time what it considers the proper usage, and act accordingly in particular cases. The members of the court at a given time cannot make its usage a strict law for those who succeed to their authority hereafter. At present it seems to be the accepted view VI 311 CASE-LAW AND PRECEDENTS though it is certainly of no great antiquity and House of Lords rests chiefly on the repeated assertions of one judge, deems it- self bound Lord Campbell, that the House of Lords m its by its own judicial capacity should hold itself absolutely bound by its own former decisions. In 1801 Lord Eldon seems to have thought that the House was not so bound, for he said: "A rule of law laid down by the House of Lords cannot be reversed by the Chancellor . . . the rule of law must remain till altered by the House of Lords."1 But in 1827> speaking in the House of Lords, he said the House was bound by a certain previous decision of its own on a like subject-matter, unless there were special circumstances to take the case in hand out of the governing principle.2 In 1852 Lord St. Leonards and Lord Campbell differed on the point. Lord St. Leonards gave it as his own opinion, addressing the House, "that although you are bound by your own decisions as much as any court would be bound, so that you could not reverse your own decision in a particular case, yet you are not bound by any rule of law which you may lay down, if upon a subsequent occasion you should find reason to differ from that rule; that is, that this House, like every court of 1 Perry v. Whitehead, 6 Yes. at pp. 547-48. 2 Fletcher v. Sondes, 1 Bli. N.S. at p. 249. 312 FIRST BOOK OF JURISPRUDENCE chap. justice, possesses an inherent power to correct an error into which it may have fallen."1 Lord Campbell declined, though with expressions of deference, to concur in this: "Because/' he said, "according to the impression upon my mind, a decision of this High Court, in point of law, is conclusive upon the House itself, as well as upon all inferior tribunals. I consider it the constitutional mode in which the law is declared, and that after such a judgment has been pronounced it can only be altered by an Act of the Legislature."2 For otherwise, he argued, the rights of the Queen's subjects would be in a state of uncertainty. In the particular case the House avoided facing the difficulty by treating a previous decision, from which they did in substance depart,3 as having proceeded on questions of fact. But in 1860 Lord Campbell, having become Chancellor, repeated his opinion in the most positive terms. The statement was at the time gratuitous, nor was it altogether accepted.4 1 Bright v. Button, 3 H.L.C. at p. 388. 2 lb. at pp. 391-92. 3 Lord Justice Lindley (on the Law of Companies, pp. 764, 765) does not scruple to say that in Bright v. Button the House of Lords repudiated that decision, or to describe it as overruled. 4 A.-G. v. Dean and Canons of Windsor, 8 H.L.C. at pp. 391- 93; Lord Kingsdown, at p. 459, reserved his opinion whenever the question should really arise. vi CASE-LAW AND PRECEDENTS 313 A year later, in a case which Lord Campbell Beamish v. Beamish. seems to have had present to his mind on the occasion last mentioned, he advised the House, against his own opinion of the history and authori- ties bearing on the case, that it was bound by the result of a previous appeal in which the decision appealed from was affirmed, or rather stood unreversed, by reason of the House of Lords being then equally divided. In 1843 it had been held, in this not highly convincing manner, that by the old common law of England the presence of a priest was necessary to the civil if not canonical validity of a marriage: an opinion which in 1861 was believed by a majority of the House of Lords and the judges who advised them, and is now believed by most competent scholars, to be without any real historical foundation.1 When the question came again before the House of Lords, the late Mr. Justice Willes virtually, though not professedly, demonstrated, in a full and most learned opinion, that the supposed difference between the law of England and that of the rest of Western Christen- dom was imaginary. His reasons convinced Lord Campbell and Lord Wensleydale, but Lord Campbell 1 R. v. milis, 12 Cl & F. 534; see Mr. Maitland's note in Pollock and Maitland's Hist. Eng. Laic, ii. 370. 314 CHAP. FIRST BOOK OF JURISPRUDENCE declared himself not at liberty to act on his con- viction. He said: If it were competent to me, I would ask your Lordships to reconsider the doctrine laid down in the TJie Queen v. Millis, particularly as the judges who were then consulted complained of being hurried into giving an opinion without due time for deliberation, and the Members of this House who heard the argument, and voted on the question, "That the judgment appealed against be reversed," were equally divided; so that the judgment which decided the marriage by a Presbyterian clergyman of a man and woman, who both belonged to his religious persuasion, who both believed that they were contracting lawful matrimony, who had lived together as husband and wife, and who had procreated children while so living together as husband and wife, to be a nullity, was only pronounced on the technical rule of your Lordships' House, that where, upon a division, the numbers are equal, semper prce-stimitur pro negante. But it is my duty to say that your Lordships are bound by this decision as much as if it had been pronounced nemine dissentiente, and that the rule of law which your Lordships lay down as the ground of your judgment, sitting judicially, as the last and supreme Court of Appeal for this empire, must be taken for law till altered by an Act of Parliament, agreed to by the Commons and the Crown, as well as by your Lordships. The law laid down as your ratio decidendi, being clearly binding on all inferior tribunals, and on all the rest of the Queen's subjects, if it were not considered as equally binding upon your Lordships, this House would be arrogating to itself the right of altering the law, and legislating by its own separate authority. Lord Wensleydale said, more shortly, that, having been one of the judges who advised the vr CASE-LAW AND PRECEDENTS 315 House in B. v. Millis, he felt great doubts at the time; and he implied that those doubts were now rather increased; but the question must be taken as "finally and irrevocably settled by this House." Accordingly the House proceeded to the further inference (doubtless a necessary one if the original doctrine were right) that the priest required by the law laid down in R. v. Millis is a third person, and the rule is not satisfied by the intending husband being in priest's orders and performing the marriage ceremony for himself. It may seem startling that questions of legitimacy and property should be treated as irrevocably settled by the result of an equal division of the House of Lords, on argument and information admittedly imperfect with regard to the history of the law; that result, moreover, depending on the accident of the form in which the appeal was presented: but so they were.1 Lord Campbell's doctrine has been recognised Later , . statement more than once m later years, though there has not m House been any such striking occasion for applying it. Thus Lord Wensleydale spoke of the decisions of the House as "no doubt binding upon your lordships and upon all inferior tribunals,"2 and 1 Beamish v. Beamish (1861), 9 H.L.C. 274. 2 Mersey Docks Trustees v. Gibbs (1S66), L.R. 1 H.L. 93. 125. 316 CHAP. FIRST BOOK OF JURISPRUDENCE Lord Blackburn has said: "When it appears that a case clearly falls within the ratio decidendi of the House of Lords, the highest Court of Appeal, I do not think it competent even for this House to say that the ratio decidendi was wrong." 1 And Lord Halsbury has spoken of the House as "a tribunal from which there is no appeal and which is bound by its own decisions/' and whose previous decisions it is therefore useless to examine on the ground of convenience.2 It has been perceived, indeed, that however much the House of Lords may declare itself infallible in a juridical sense, it may never- theless be found that different reported decisions of the House are not easy to reconcile: a tribunal which will not overrule itself de iure may sometimes forget its own former reasons and contradict itself de facto. This, or something so like it as to appear so to Lord Blackburn, has been known to happen. All that can be said is that decisions of the court of final appeal are not to be treated as conflicting without unavoidable necessity,3 but if no reasonable 1 Houldsworth v. City of Glasgow Bank (1880), 5 App. Ca. 317, 335: to same effect Harris v. G. JF.R. Co. (1876), 1 Q.B.D. at p. 528. 2 Barley Main Colliery Co. v. Mitchell (1886), 11 App. Ca. 127, 134. 3 Lord Selborne in Caledonian Railway Co. v. Walker s Trustees (1882), 7 App. Ca. at p. 275. vi CASE-LAW AND PRECEDENTS 317 exercise of ingenuity can reconcile them, "the later and more deliberate decision " ought to be followed.1 No other court of last resort has gone quite so Usage of Judicial far, it is believed, in disclaiming power to correct Committee, itself. The Judicial Committee of the Privy Council has held itself free to reconsider a question which it had formerly been compelled to decide ex parte, and had decided, on such consideration as was then practicable, against the party who failed to appear. In the result the previous declaration was confirmed, but after full argument, in which the point was treated as open and discussed on its merits. Their lordships, it is true, drew a distinc- tion between cases deciding civil rights and cases involving penal consequences. They said: "In the case of decisions of final Courts of Appeal on questions of law affecting civil rights, especially rights of property, there are strong reasons for holding the decision, as a general rule, to be final as to third parties. The law as to rights of property in this country is to a great extent based upon and formed by such decisions. When once arrived at, these decisions become elements in the composition of the law, and the dealings of mankind are based 1 Lord Blackburn in Caledonian Hail way Co. v. Walker's Trustees (1882), 7 App. Ca. at p. 302. 318 FIRST BOOK OF JURISPRUDENCE chap. upon a reliance on such decisions." But they were careful to avoid any following of Lord Campbell's dogmatism, for they added: "Even as to such decisions it would perhaps be difficult to say that they were, as to third parties, under all circum- stances and in all cases absolutely final, but they certainly ought not to be reopened without the very greatest hesitation." 1 This judgment of the Judicial Committee was delivered by Lord Cairns, then Lord Chancellor. It would seem that he was not prepared to accept Lord Campbell's self-denying ordinance for the House of Lords in its full extent: the Judicial Committee could not, of course, properly express any opinion as to what the House of Lords ought to do in exceptional cases: but the Judicial Committee, advised by Lord Cairns, certainly did act in a different spirit from the House of Lords advised by Lord Campbell. In fact the Judicial Committee had gone very near to overruling itself many years earlier, in 1842, though it was then said that the previous opinion dissented from was "in some degree extrajudicial." 2 1 Ridsdalc v. Clifton (1877), 2 P.D. 276, see at pp. 306, 307. 2 Ridley y. Carson, 4 Moo. P.C. 63, 91, not following Beaumont v. Barrett, 1 Moo. P.C. 59. Lord Campbell took part in this decision. VI 319 CASE-LAW AND PRECEDENTS On the other hand the Court for Crown Cases Of Court for Crown Eeserved (which in its own jurisdiction is of last Cases Reserved. resort) has followed a previous decision of the same Court, though some at least of the judges present were not satisfied with that decision, on the express ground that it was binding.1 The old Superior Courts of Common Law did The Com- mon Law not hold themselves absolutely bound by their own Courts before previous decisions in certain matters as to which 1875. they had a peculiar and ultimate jurisdiction.2 In- deed it is not quite clear, as already mentioned, that they held themselves so bound in ordinary cases. The Supreme Court of the United States has American Courts of never held itself bound by its own decisions, and last resort . . not bound has, m tact, completely reversed a recent previous by their opinion in at least one celebrated group of cases cisions! within recent times.3 The court was divided, but no member of the dissenting minority suggested that the former decision was not open to review; and it is not an American but a British publicist who has observed that "the reversal by the highest court in the land of its own previous decision may 1 £. v. Glyde (1868), L.R. 1 C.C.R. 139, 144. 2 HadfielcVs Ca. (1873), L.R. 8 CP. 306; see especially per Bovill, C.-J., at p. 313. 3 The Legal Tender Cases (1S70), 12 Wallace, 457. And see J. C. Gray in Hetrv. Law Rev. ix. 40. 320 CHAP. FIRST BOOK OF JURISPRUDENCE have tended to unsettle men's reliance on the stability of the law." 1 Whatever may be thought of the action of the court on this particular occa- sion, it seems clear that a tribunal which, like the Supreme Court of the United States, is not unfre- quently called upon to decide great political controversies under judicial forms could not tie itself down to Lord Campbell's rule without risk of inconveniences far graver than any that can result from the opposite course. The like under- standing prevails in State Courts, though the reasons for it may not there be so strong. A very learned American writer states it as well known that "the highest courts of the respective States, as well as the Supreme Court of the United States, all consider that they have the power to depart from their former rulings, however inexpedient it may be to exercise it." 2 Decisions Decisions on the same or an analogous point, in other . . common- given by a court administering the same or sub- law juris- . , . . dictions stantially the same law, but m a cliflerent jurisdic- not author have never been treated as binding by English Courts. They may be treated with respect, in some cases with very great respect, but an English 1 Bryce, The American Commonwealth, 3rd ed. 1893, i. 270. 2 J. C. Gray, Harv. Law Rev. ix. 40. VI 321 CASE-LAW AND PRECEDENTS court is not bound to follow them, and indeed is bound not to follow them if it thinks them in- correct. The decisions of the Judicial Committee on appeal from colonies where the Common Law prevails are the most conspicuous example. At least once the Court of Appeal has dissented from the conclusion of the Judicial Committee on an important point of mercantile law.1 Such dissent, however, is uncommon, as might be expected; the more usual relation was expressed by Lord Esher in the Court of Appeal in 1878: "Though those decisions are not authorities which bind us, we are always glad to be able to follow them." 2 The judgments of Irish courts, of the leading American courts, especially the Supreme Court of the United States, and of Scottish courts so far as they deal with principles of general jurisprudence or mercantile law common to the two countries, are held entitled to the same kind of regard.3 In the 1 Lcask v. Scott (1877), 2 Q.B.D. pp. 376, 3S0. So as to decisions on appeal from the old Admiralty Court, see L.R. 6 Q. B. p. 736. 2 Acatos v. Burns, 3 Ex. D. pp. 282, 291. Still less, of course, are dicta in the Judicial Committee binding, see A. G. v. Jacobs Smith, '95, 1 Q.B. at p. 483. 3 See per Bramwell, B., in Osborn v. Gillett, L.R. 8 Ex. 97; per Cockburn, C.-J., in Scaramanga v. Stamp, 5 C.P.D. p. 303; per Lord Esher, M.R., in The Bcmina, 12 P.D. p. 77, and per Lord Herschell in S.C. nom. Mills v. Armstrong in H.L., 13 A pp. Ca. 10; as to Scottish decisions Johnson v. Raylton, 7 Q.B.D. p. 438. Y 322 CHAP. FIRST BOOK OF JURISPRUDENCE United States, reciprocally, modern English de- cisions, though nowhere, of course, having positive authority, are constantly cited and discussed; indeed in most States they are oftener cited than the decisions of any other State. And in any one State the decisions of every other State have only what may be called a persuasive as distinct from a binding authority. Eor all practical purposes, however, it may be said that a rule of general law which has been laid down or approved, to sub- stantially the same effect, in the House of Lords and in the Supreme Court of the United States is the law of the English-speaking world wherever it has not been excluded or varied by express legis- lation. Decisions given in Ireland by Lord Eedesdale and by Sir Edward Sugden, afterwards Lord St. Leonards and Chancellor of Great Britain, have been treated as positive authority in the English Court of Chancery; but this is an exceptional tribute to the eminence of those particular judges. Nisi Prius Decisions of a judge sitting alone at " Nisi Prius," < ecisioiib. g-yen Q£ ciirection to the jury, can seldom be founded on full and sufficient argument, and by the nature of the proceedings they have to be arrived at without opportunity for much considera- VI 323 CASE-LAW AND PRECEDENTS tion. Such decisions have therefore never been allowed the same weight as those of courts which are able to deliver considered judgments. Mr. Justice Best said of a ruling of Lord Kenyon's: "No man can entertain a higher respect for the memory of that noble and learned judge than I do; but Nisi Pruts decisions coming even from him, unless they have been acted upon by succeed- ing judges sitting in banc, are entitled to very little consideration."1 The practice of reporting Nisi Prius rulings has been abandoned for many years/ but many of the older ones have become good authority by subsequent approval, and some of them are the only definite reported authority for points of law now received as not only settled but elementary. Perhaps the best expressed justification of our Rationale system ol ascribing positive authority to decided system, cases is in an opinion given to the House of Lords by Sir James Parke, afterwards Lord Wensleydale. Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and 1 Partem v. Williams (1820), 22 R.R. at p. 422; 3 B. & Aid. at p. 341. 2 Foster and Finlason's R-cports, ending in 1867, appear to he the latest series of this kind. 324 FIRST BOOK OF JURISPRUDENCE chap. certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great im- portance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.1 It would be too much to say that the system of the Common Law secures complete uniformity or consistency. Courts are not only liable to errors of judgment, but may be imperfectly informed. But probably it is more successful in these respects than any other system. No doubt it appears more complex and artificial, but it will be found on examination that in other systems the complications are not so much avoided as concealed or shifted. Either a large undefined discretion must be left to the judge in every case, and uniformity given up even as an ideal, or a mass of judicial or extra- judicial exposition, or both, must accumulate—as has actually happened, for example, in France—and form in course of time a storehouse of conflicting opinions, all capable alike of being cited and used 1 Per Parke, J., Mirchouse v. Bennell (1833), 1 01. & F. pp. 527, 546. vi CASE-LAW AND PRECEDENTS 325 in argument, but none of them authoritative or final. Where the two systems have come into competition, as they have done in the Province of Quebec, the Cape Colony, and other British possessions origin- ally settled under Continental systems of law, the method of ascribing exclusive authority to judicial decisions has invariably, so far as I know, been accepted. The more or less authoritative expositions of Use of Roman Roman law, or of any foreign system, by ancient or and foreign law. modern writers, may be cited by way of illustration in courts administering the Common Law, but only on their intrinsic merits, and they can be usefully cited only on questions of principle where there is no apparent reason for the law being different in different countries; and even then it is seldom desirable to rely on them in argument except in the absence of appropriate authority in our own books. There is one, and, so far as I know, only one classical case of the opinion of a Eoman lawyer, as embodied in the Digest, being used and avowedly followed by an English Court of Common Law in a purely English litigation. In 1843 the Court of Exchequer Chamber had before it a new and important point on the rights of adjacent landowners to the use of underground waters. There wTas no 326 FIRST BOOK OF JURISPRUDENCE chap. English authority definitely dealing with the point, and the Digest of Justinian was freely cited in argument. The Court thought the English cases, though not decisive, were against the existence of the right claimed by the plaintiff, and added: The Roman law forms no rule, binding in itself, upon the subjects of their realms; but, in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe.1 And a fragment of Ulpian vouching and approv- ing an opinion of Marcellus was declared to be "decisive upon the point in favour of the defend- ants." It is obvious that, as our modern authorities became fuller, cases where it is needful or desirable to recur to the Corpus Juris are less and less likely to present themselves. Even in jurisdictions which as matter of history are outside the Common Law, for example in Admiralty cases, the general usage is now not to go beyond our own reported decisions. Chief Justice Holt's famous exposition of the law of bailments in Coggs v. Bernard? is not 1 Acton v. Bhcndell, 12 M. & W. pp. 334, 353. 2 2 Ld. Raym., 909, 1 Sm. L.C. 10th ed. p. 167. vi CASE-LAW AND PRECEDENTS 327 analogous to the Exchequer Chamber's open citation of the Digest. For, although Holt's material was largely Eoman, and he must have known it, he took it not directly from Justinian, but indirectly through Bracton, whom he seems, conformably to the medieval tradition of the king's judges,1 rather to avoid regarding as a writer having positive authority in the law of England. "This Bracton I have cited is, I confess, an old author; but in this his doctrine is agreeable to reason, and to what the law is in other countries." The Institutes are just referred to by way of illustration.2 The administration by English authority of those Foreign foreign systems of law which actually prevail in British particular British possessions, as does French law posseb in the Province of Quebec and in Mauritius, Boman-Dutch law in the Cape Colony, and (in certain departments) the personal law of Hindus, Mahometans, and others in British India, is altogether a different matter. In those jurisdictions the law of England is itself, properly speaking, a foreign law which can be cited only by way of 1 "The whole court said that Bracton was never held for an authority in our law."—Fitzh. Abr. Card?, pi. 71. This statement must rest on some private tradition: it is not in the Year Book report referred to in the margin of Fitzherbert. 2 1 Sm. L.C. 10th ed. at p. 175 ; similarly at pp. 176, ISO. 328 FIRST BOOK OF JURISPRUDENCE chap, vi illustration. But the tendency of both advocates and judges in all jurisdictions is to use and rely on the books with which they are most familiar, even if they be not properly entitled to be treated as having authority in the law discussed and applied by the court. It would seem at first sight rather difficult to import English technical notions into the administration of Hindu or Mahometan law, conducted wTith professed regard for the native principles and authorities of each system. But experience has shown that, with the best intentions, the difficulty is to avoid doing this. And the tendency is by no means confined to British or English-speaking lawyers. I have seen an opinion of a distinguished French advocate on a case arising in Peru, in which he simply assumed the French Civil Code to be applicable. In fact the Peruvian Code on that head of law was practically a transla- tion of the French Code, but the learned Frenchman did not refer to this at all, nor did he appear to have made any inquiry or verification. CHAPTEE VII ANCIENT AND MODEEN STATUTES [Reports of the Statute Law Commissioners from 1835. T. E. Holland, Essays upon the Form of the Law, London 1870.] The actual procedure of Parliament or of any Ancient Acts of other legislative assembly is a matter of constitu- Parliament, Low framed tional law not to be considered in this work. But the place of legislation among the sources of law is very different from what it was in the Middle Ages, and a student may easily be misled if he carries back into medieval history notions derived from the constant and systematic working of our modern legislative machinery. In the Middle Ages legisla- tion was not the primary business of Parliament, and the rule that the king cannot legislate without Parliament was established only by degrees. Early statutes, therefore, are of a mixed character, con- taining both legislative and administrative provisions. We can hardly separate the declaration of new law 330 CHAP. FIRST BOOK OF JURISPRUDENCE from the enforcement of old, the establishment of novel remedies for novel mischiefs or newly detected shortcomings from the kind's executive instructions to his officers. The King in his Council is alike ready to make fresh rules, to provide fresh machinery for the better working of existing rules, and to dis- pense justice in extraordinary cases. Law-making is not yet regarded as a distinct branch of sovereign power, external to the judicial authority, requiring strict and literal obedience, but entitled to nothing more. Hence there is a notable contrast between ancient and modern statutes. "The former," said the Criminal Law Commission of 1835, " often con- tain little more than the enunciation of a general principle of law, leaving the Courts to work out and establish the provisions necessary for carrying the law into effect, whilst in modern statutes the opposite extreme appears to have been followed; and the enactments are expressed with much useless circum- locution, and are overloaded with minute provisions, details, and repetitions." Again, the wording of the statutes was not finally settled by Parliament itself, but entrusted to a smaller body of the king's learned counsellors and judges. In 1305 Hengham, Chief Justice of the Common Pleas, cut short an argument of counsel on the construction of the second Statute vii ANCIENT AND MODERN STATUTES 331 of Westminster with the remark: "None of your glosses on the Statute; we know it better than you, for it was our work." 1 Hengham was Chief Justice of the King's Bench in 128 5, when the statute was passed, and would naturally be one of the chief persons consulted. In later times the judges have treated Acts of Parliament as proceeding from a wholly external and unjudicial authority. Coke, in the Prefaces to his Reports and elsewhere, gave utterance to the feeling that Acts of Parliament which meddle with the Common Law (that is, with the judicial development of it by the courts) are on the whole likely to do more harm than good. His criticism did not spare even the statutes of Edward I. This feeling, which may now be called traditional, Profes- sional is not due merely to blind professional dislike of jealousy of statute change. There is real danger of both the principles law. and the administration of the law being impaired by the well meant adventures of amenders who are not sufficiently informed to understand the difficulties of their task, and who have not the skill needed for its adequate execution. Both the matter and the form of legislation depend on the will of the legislator, and in almost all English-speaking com- 1 "Ne glosez point le statut ; nous le savoms meuz cle vous, qar nous les feimes": Y. B. 33-35 Ed. I., ed. Horwood, p. S3. 332 FIRST BOOK OF JURISPRUDENCE munities legislative power has been exercised by assemblies which cannot well be learned as a whole, and which may or may not be disposed to take the advice of competent persons as to the workman- ship of their productions. Degenera- In fact the statutes of Edward I., framed, as we tion of workman- have seen, by learned men who treated the resolu- ship in and after Tudor tions of Parliament as instructions leaving them a period. discretion as to form, are clear and businesslike. If they are obscure to posterity, it is because the language and matter are no longer familiar, not by reason of bad work. The great statute of