 Section 0 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Ian Stewart, Rosanna, Victoria, Australia. Jurisprudence by John Salmond. Preface. Preface to the first edition. I have endeavoured to make this book useful to more than one class of readers. It is written primarily for the use of those students of the law who are desirous of laying a scientific foundation for their legal education. Yet I hope that it will not be found at destitute of interest by those lawyers whose academic studies lie behind them, but who have not wholly ceased to concern themselves with the theoretical and scientific aspects of the law. Further, a great part of what I have written is sufficiently free from the technicalities and details of the concrete legal system to serve the purposes of those laymen who with no desire to adventure themselves among the repellent mysteries of the law are yet interested in those more general portions of legal theory which touch the problems of ethical and political science. It will be noticed that occasional passages of the text are printed in smaller type. These are of lesser importance, of greater difficulty, or of a controversial or historical character, and are not essential to the continuity of the exposition. Certain parts of this book have already been published in the law quarterly review, and I have also incorporated in it the substance of a much smaller work published by me some years ago under the title of The First Principles of Jurisprudence. I have not thought it necessary to allude in the text to certain discrepancies in matters of detail between my earlier and later views, and it will be understood that the present work wholly supersedes the earlier, as containing a restatement of the substance of it in a more comprehensive form. J. W. S. Adelaide, March 1902. Preface to the fourth edition. This edition is substantially a reprint of the third which was published in 1910. J. W. S. London, May 1913. End of Preface. Recording by Ian Stewart, Rosanna, Victoria, Australia. Section 1 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Jurisprudence by John Salmond. Chapter 1. The Science of Jurisprudence. Section 1. Jurisprudence as the Science of Law. In the widest of its applications the term Jurisprudence means the Science of Law. Using the word law in that vague and general sense, in which it includes all species of obligatory rules of human action. Of Jurisprudence in this sense, there are as many divisions as there are kinds of law, which have been deemed sufficiently important and well-developed to serve as the subject matter of distinct branches of learning. They are at least three in number. 1. Civil Jurisprudence. This is the Science of Civil Law. That is to say the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and administered in the tribunals of the state. 2. International Jurisprudence. This is the Science of International Law or the Law of Nations. It is concerned not with the rules which are enforced within states, but with those which prevail between states. Just as the conduct of the subjects of a single state is governed by the civil law, so international law regulates the conduct of states themselves in their relations towards each other. And 3. Natural Jurisprudence. This is the Science of that which our forefathers termed natural law or the law of nature, just naturally. By this they meant the principles of natural justice, justice as it is in itself indeed and in truth as contrasted with those more or less imperfect and distorted images of it, which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law, whether natural law, so called, can be rightly classed along with the civil and international law as a species of the same genus, is a question which is not needful for us here to discuss. It is sufficient for our present purpose to note the historical fact that there is a very extensive literature in which the law of nature is given a place side by side with civil law and the law of nations, just naturally, just civilly and just gentium, and in which the resulting three-fold division of jurisprudence into natural, civil and international is recognized as valid. Books of natural jurisprudence are in their essence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher. Experience has shown, however, that this abstract theory of justice in itself, this attempt to work out in abstracto the principles of natural right, is a sufficiently unprofitable form of literature. In England both name and thing have become in recent years all but obsolete, yet they are not wanting, even at this day, examples of the earlier way of thought. The most notable of these is the late professor Lorimer's Institutes of Law, a treatise on the principles of jurisprudence as determined by nature. On the continent, on the other hand, the literature of natural law, though no longer as flourishing as it was, is still of importance. One of the best known works of this class is Aaron's Courthoudroit Naturelle, a typical example from an earlier epoch is Puffendorf's once celebrated but now neglected work, The Eury Naturae at Gentium, 1672. Section two, jurisprudence as the science of civil law. In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to only one, namely that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also, for when we speak of law without any qualifying epithet, we commonly mean that particular form which is administered in the tribunals of the state, so when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone. Footnote, the term civil law, though once in common used to indicate the law of the land, has been partly superseded in recent times by the improper substitute positive law. Just positivem was a title invented by medieval jurists to denote law made or established positivem by human authority, as opposed to that just nature rally, which was uncreated and immutable. It is from this contrast that the term derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All is positive, which is not natural. International and canon law, for example, are kinds of just positivem, no less than the civil law itself. The term civil law possesses several other meanings which are not likely, however, to create any confusion. It often means the law of Rome, corpus juris civilis, as opposed more especially to the canon law, corpus juris canonici, these being the two great systems by which in the Middle Ages, state and church were respectively governed. At other times it is used to signify not the whole law over the land, but only the residue of it, after deducting some particular portion having a special title of its own. Thus, civil is opposed to criminal law, to ecclesiastical law, to military law, and so on. The term civil law is derived from the just civilly of the Romans. End footnote. Civil jurist prudence is divisible into three branches, which may be distinguished as systematic, historical, and critical. The first deals with the present. Its purpose is the exposition of the legal system as it is now. The second deals with the past. It is concerned with the legal system and the process of its historical development. The third deals with the ideal future. It expounds the law not as it is or has been, but as it ought to be. Systematic jurist prudence is legal exposition. Historical jurist prudence is legal history, while critical jurist prudence is commonly known as the science of legislation. Section 3. Theoretical jurist prudence. There is yet a third and still narrower sense in which jurist prudence includes not the whole science of civil law, but only a particular part of it. In this limited signification, it may be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How then shall we define it, and how distinguish it from the residue of the science of the civil law? It is the science of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between these first principles and the remaining portions of the legal system. The distinction is one of degree, rather than one of kind. Nevertheless, it is expedient to set apart, as the subject matter of a special department of study, those more fundamental conceptions and principles which serve as the basis of the concrete details of the law. This introductory and general portion of legal science cut off, for reasons of practical convenience, from the special portions which come after it, constitutes the subject matter of our inquiry. It comprises the first principles of civil jurisprudence in all its three divisions, systematic, historical, and critical. The fact that its boundaries are not capable of being traced with logical precision detracts in no degree from the advantages to be derived from its recognition and separate treatment as a distinct department of judicial science. Practical legal exposition acknowledges no call to rise to first principles or to proceed to ultimate analysis. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward and descends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, retributes value to the abstract and the general, rather than to the concrete and the particular. Even when these two departments of knowledge are coincident in their subject matter, they are far apart in their standpoints, methods, and purposes. The aim of the abstract study is to supply that theoretical foundation which the science of law demands, but of which the art of law is careless. Opinions may well differ to some extent is to the matters which are fit by reason of their generality or their theoretic and scientific interest to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may be said that this science appropriately deals with such matters as the following. One, an analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law. Two, an analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up, for example those of the state, of sovereignty and of the administration of justice. Three, an account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law. Four, an examination of the general principles of legal development, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history. Five, an inquiry into the scientific arrangement of the law, that is to say, the logical division of the corpus juris into distinct departments, together with an analysis of the distinctions on which the division is based. Six, an analysis of the conception of legal rights, together with a division of rights into various classes, and the general theory of the creation, transfer, and extinction of rights. Seven, an investigation of the theory of legal liability, civil and criminal. And eight, an examination of any other juridical conceptions, which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserves special attention from the abstract point of view. For example property, possession, obligations, trusts, incorporation, and many others. It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is if we state shortly what it is not. One, in the first place, it is not an elementary outline of the concrete legal system, that deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most obtuse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law. Any more than metaphysics is elementary science. Two, in the second place, it is not, as the main general jurisprudence suggests, and as some writers have held, the science of those conceptions and principles which all or most systems of law have in common. It is true indeed that a great part of the matter, with which it is concerned, is to be found in all mature legal systems. All these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles, but it is not because of this universal reception that such principles pertain to theoretical jurisprudence. Were it a rule of every country in the world that a man could not marry his deceased wife's sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognized the legislative efficacy of precedent, the theory of case law would nonetheless be a fit and proper subject of the science in question. And three, finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic. The divisions of legal sciences they have been stated and explained in the foregoing pages may be exhibited in tabular form as follows. The top node of a tree is jurisprudence or the science of the law in general. This top node branches off into three, civil, international and natural. Natural law is the science of natural law and justice. International is the science of the law of nations. Civil branches off into theoretical and practical. Theoretical is the theory of civil law, the science of the first principles of civil law. Practical branches off into systematic or legal exposition, historical or legal history and critical, the science of legislation. Section 4, English and foreign jurisprudence. The use of the term jurisprudence to indicate exclusively that special branch of knowledge which we have termed theoretical jurisprudence is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal science and are never used in this specific limited signification. The foreign works which correspond most accurately to the English literature of the subject are of three different kinds. One, works devoted to the subject known as juridical encyclopedia, one of the best known examples of which is that of arts. He defines the department of legal science as comprising a scientific and systematic outline or general view of the whole province of jurisprudence. Rektswissenschaft, together with the general data of that science. Its purpose, he adds, is to determine the compass and limits of jurisprudence, its relations to other sciences, its internal divisions and the mutual relations of its constituent parts. Two, books of Pendektenrecht, that is to say modern Roman law, and more especially the introductory or general part of these works. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pendekts, in that modern form in which it was received in Germany until superseded by recent legislation. Much of the work so done bears too special a reference to the details of the Roman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished system of modern Roman law by Savini, and of similar works of Winscheid and Dernberg. Three, a third form of foreign literature, which corresponds in part to our English books of jurisprudence, consists of those works of jurisprudentia naturalis, which have been already referred to. These contain the theory of natural law and natural justice, while English jurisprudence is concerned with civil law and with the civil or legal justice which that law embodies. Yet the relation between natural and civil law, natural and civil justice, is so intimate that the theory of the one is implicitly, if not explicitly, that of the other also. Widely, therefore, as they differ in aspect, we may place the French philosophy du droit naturelle and the German Naturrechtswissenschaft side by side with our own theoretical jurisprudence. It is indeed from the earlier literature of natural law, as represented by Pufendorf, Herlamicoi, Hynekius, and others, that the modern English literature of jurisprudence is directly descended. End of section one. Section two of jurisprudence. This is a Librivox recording. All Librivox recordings are in the public domain. For more information or to volunteer, please visit Librivox.org. Jurisprudence by John Salmond. Chapter 2. Civil Law, Part 1. Section 5. The Definition of Law. The law is the body of principles recognized and applied by the state in the administration of justice. Or, more shortly, the law consists of the rules recognized and acted on in courts of justice. It will be noticed that this is a definition not of a law, but of the law, and our first concern is to examine the significance of this distinction. The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In its abstract application, we speak of the law of England, the law of libel, criminal law, and so forth. Similarly, we use the phrases law and order, law and justice, courts of law. It is to this usage that our definition is applicable. In its concrete sense, on the other hand, we say that Parliament has enacted or repealed a law. We speak of the bylaws of a railway company or municipal council. We hear of the corn laws or the navigation laws. The distinction demands attention for this reason, that the concrete term is not co-extensive with the abstract in its application. Law, or the law, does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws, but rules of law or legal principles. That a will requires two witnesses is not rightly spoken of as a law of England. It is a rule of English law. A law means a statute, enactment, ordinance, decree, or any other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produces statute law, just as custom produces customary law, or as precedent produces case law. This ambiguity is a peculiarity of English speech. All the chief continental languages possess distinct expressions for the two meanings. Law in the concrete is Lex, Loire, Gesetze, Ledger. Law in the abstract is Joss, droit, rect, drito. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval Latin, for example, constantly uses Lex as equivalent to Joss, and the same usage is not uncommon in the case of the French Loire. The fact remains, however, that the continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term. Most English writers have, in defining law, defined it in the concrete, instead of in the abstract sense. They have attempted to answer the question, what is a law? While the true inquiry is, what is law? The central idea of juridical theory is not Lex, but Joss, not Gesetze, but rect. To this inverted and unnatural method of procedure, there are two objections. In the first place, it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers, the concrete signification is quite unusual. They speak habitually of law, of the law, of rules of law, of legal principles, but rarely of a law or of the laws. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law, a statute, act of parliament, by law, or rule of court. In the second place, this consideration of laws, instead of law, tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is consequently responsible for much that is inadequate and untrue in the juridical theory of English writers. Section 6, The Administration of Justice We have defined law by reference to the administration of justice. It is needful therefore to obtain here some understanding of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know the right is to do it. In the nature of things there is a conflict, partly real, partly only apparent, between the interests of man and man, and between those of individuals and those of society at large, and to leave every man free to do that which is right in his own eyes would fill the world with fraud and violence. We have seen, says Spinoza at the commencement of his treatise on politics, that the way pointed out by reason herself is exceedingly difficult, in so much so that they who persuade themselves that a multitude of men can be induced to live by the rule of reason alone are dreamers of dreams and of the golden age of the poets. If therefore we would maintain justice, it is necessary to add compulsion to instruction. It is not enough to point out the way. It is needful to compel man to walk in it. Hence, the existence of various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of these systems is the administration of justice by the state. Another is the control exercised over men by the opinion of the society in which they live. A third is that scheme of coercion established within the society of states for the enforcement of the principles of international justice. The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state. The instrument of coercion employed by any regulative system is called a sanction, and any rule of right supported by such means is said to be sanctioned. Thus, physical force in the various methods of its application is the sanction applied by the state in the administration of justice. Senture, ridicule, contempt are the sanctions by which society, as opposed to the state, enforces the rules of morality. War is the last and the most formidable of the sanctions which in the society of nations maintain the law of nations. Threatening of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercive system. A sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right not only by imprisoning the thief, but by depriving him of his plunder and restoring it to its true owner, and each of these applications of the physical force of the state is equally a sanction. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice. Section 7. Law logically subsequent to the administration of justice. We have defined law as the body of principles observed and acted on by the state in the administration of justice. To this definition the following objection may be made. It may be said, in defining law by reference to the administration of justice, you have reversed the proper order of ideas. For law is the first in logical order and the administration of justice second. The latter therefore must be defined by reference to the former and not vice versa. Courts of justice are essentially courts of law, justice in this usage being merely another name for law. The administration of justice is essentially the enforcement of law. The laws or the commands laid by the state upon its subjects and the law courts are the organs through which these commands are enforced. Legislation, direct or indirect must precede adjudication. Your definition of law is therefore inadequate for it runs in a circle. It is not permissible to say that the law is the body of rules observed in the administration of justice since this function of the state must itself be defined as the application and enforcement of the law. This objection is based on an erroneous conception of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies, to maintain right, to uphold justice, to protect rights, to redress wrongs. Law is secondary and unessential. It consists of the fixed principles in accordance with which this function is exercised. It consists of the pre-established and authoritative rules which judges apply in the administration of justice to the exclusion of their own free will and discretion. For good and sufficient reasons, the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that which seems right and just in their own eyes. They are bound hand and foot in the bonds of an authoritative creed which they must accept and act on without demure. This creed of the courts of justice constitutes the law, and so far as it extends it excludes all right of private judgment. The law is the wisdom and justice of the organized commonwealth, formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modern and civilized state is doubtless justice according to the law, but it is essentially and primarily justice and not law. Judges are appointed in the words of the judicial oath to do right to all manner of people after the laws and usages of this realm. Justice is the end. Law is merely the instrument and the means, and the instrument must be defined by reference to its end. It is essential to a clear understanding of this matter to remember that the administration of justice is perfectly possible without law at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the state should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles which are called the law. A tribunal in which right is done to all manner of people in such fashion as commends itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law. Moreover, even when a system of law exists, the extent of it may vary indefinitely. The degree in which the free discretion of a judge in doing right is excluded by predetermined rules of law is capable of indefinite increase or diminution. The total exclusion of judicial discretion by legal principle is impossible in any system. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law, some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. Law is a gradual growth from small beginnings. The development of a legal system consists in the progressive substitution of rigid, pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a conditioned precedent of the administration of justice, but a product of it. Gradually from various sources, precedent, custom, statute, there is collected a body of fixed principles, which the courts apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases to be what is the right and justice of this case, and more and more assumes the alternative form. What is the general principle already established and accepted as applicable to such a case as this? Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law. Section 8. Law and Fact The existence of law, as has been said, marked and measured by the exclusion in courts of justice of individual judgment by authority, of free discretion by rule, of liberty of opinion by pre-established determinations. The remarkable extent to which this exclusion is permitted is a very characteristic feature of the administration of justice, but it is not and cannot be complete. Judicial action is accordingly divisible into two provinces, one being that of law, and the other that of fact. All matters that come for consideration before courts of justice are either matters of law or matters of fact. The former are those falling within the sphere of free-established and authoritative principle, while the latter are those pertaining to the province of unfettered judicial discretion. In other words, every question which requires an answer in a court of justice is either one of law or one of fact. The former is to be answered in accordance with established principles, one which has been already authoritatively answered explicitly or implicitly by the law. A question of fact, on the other hand, is one which has not been thus predetermined, one on which authority is silent, one which the court may and must answer and determine in accordance with its own individual judgment. It must be clearly understood that by a question of fact, as we have used the expression, is meant any question whatever except one of law, whether that question is or is not one of fact in the other senses of this equivocal term. We are not concerned, for example, with the distinction between matters of fact and matters of right, or with that between matters of fact and matters of opinion. Everything is fact for us which is not predetermined by legal principles. It is clear that this is the sense in which this term must inevitably be used, if the distinction between questions of fact and questions of law is to be exhaustive and logical. The distinction may be illustrated by the following examples. Whether a contractor has been guilty of unreasonable delay in building a house is a question of fact. The law contains no rules for its determination. But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonor is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act. Whether verbal or written evidence of a contract is the better is a question of law. The superiority of the latter being the subject of a pre-existing and authoritative generalization. But whether the oral testimony of A or that of B is the better evidence is a question of fact left entirely to the untrammeled judgment of the court. What is the proper and reasonable punishment for murder is a question of law. Individual judicial opinion being absolutely excluded by a fixed rule. What is the proper and reasonable punishment for theft is, save so far as judicial discretion is limited by the statutory appointment of a maximum limit, a question of fact on which the law has nothing to say. The question whether a child accused of a crime has sufficient mental capacity to be criminally responsible for his acts is one of fact, if the accused is over the age of seven years, but one of law to be answered in the negative if he is under that age. The point in issue is the meaning of a particular clause in an act of parliament. Whether this is a question of fact or of law depends on whether the clause has already been the subject of authoritative judicial interpretation. If not, it is one of fact for the opinion of the court. If, however, there has already been a decision on the point, the question is one of law to be decided in accordance with the previous determination. The conclusion may seem paradoxical that a question of statutory interpretation may be one of fact, but a little consideration will show that the statement is correct. It is true, indeed, that the question is one as to what the law is. But a question of law does not mean one as to what the law is, but one to be determined in accordance with a rule of law. A question is very often both one of fact and one of law, and is then said to be a mixed question of law and fact. It is to be answered partly in accordance with fixed legal principles and as to the residue in accordance with free judicial opinion. That is to say, it is not a simple but a composite question, resolvable into a greater or less number of simple factors, some of which pertain to the sphere of the law, and the others to that of fact. Let us take, for example, the question as to the proper term of imprisonment for a certain convicted criminal. This may, according to circumstances, be a pure question of fact, a pure question of law, or a mixed question of law and of fact. It belongs to the first of these classes if the law contains no provision whatever on the matter, the court having in consequence a perfectly free hand. It belongs to the second class if the matter is definitely predetermined by a fixed rule, appointing the exact length of imprisonment to be awarded. It belongs to the third class if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. Similarly, whether the defendant has been guilty of fraud is a mixed question of law and of fact, because it is resolvable into two elements, one of law and the other of fact. What acts the defendant has done, and with what intent he did them, are pure questions of fact. But whether such acts, done with such intent, amount to fraud is a pure question of law. So the question of whether a partnership exists between A and B is partly one of fact. Viz, what agreement has been made between these persons, and partly one of law. Viz, whether such an agreement constitutes the relation of partnership. Similar composite questions are innumerable. The distinction between matters of fact and matters of law is thrown into great prominence by the composite character of the typical English tribunal and the resulting division of functions between judge and jury. The general rule is that questions of law are for the judge, and questions of fact for the jury. This rule is subject, however, to numerous and important exceptions. Though there are no cases in which the law is left to the jury, there are many questions of fact which are withdrawn from the cognizance of the jury and answered by the judge. The interpretation of a written document, for example, maybe, and very often is a pure matter of fact, and nevertheless falls within the province of the judge. So the question of reasonable and probable cause for prosecution, which arises in actions for malicious prosecution, is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff. And if he decides that there is not, the case is withdrawn from the jury altogether. Yet in the majority of cases, this is a mere matter of fact undetermined by any authoritative principles. The validity of a legal principle is entirely independent of its truth. It is a valid principle of law not because it is true, but because it is accepted and acted on by the tribunals of the state. The law is the theory of things as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are, nor is this divergence of law from truth and fact necessarily and in its full extent inexpedient. The law, if it is to be an efficient and workable system, must needs be blind to many things, and the legal theory of things must be simpler than the reality. Partly by deliberate design, therefore, and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things are far from complete coincidence. We have ever to distinguish that which exists indeed and in truth from that which exists in law. Fraud in law, for example, may not be fraud in fact and vice versa. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud and what shall not, this principle may or may not be true, and so far as it is untrue, the truth of things is excluded by the legal theory of things. In like manner, that which is considered right or reasonable by the law may be far from possessing these qualities in truth and fact. Legal justice may conflict with natural justice. A legal wrong may not be also a moral wrong, nor a legal duty, a moral duty. Section 9. The Justification of the Law We have seen that the existence of law is not essential to the administration of justice. How so ever expedient, it is not necessary that this function of the state should be exercised in accordance with those rigid principles which constitute a legal system. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the proportion between the sphere of legal principle and that of judicial discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the uses and justification of the law, to consider the advantages and disadvantages of this substitution of fixed principles for the arbiterium judicious in the administration of justice, in order that we may be enabled to judge whether this substitution be good or evil, and if good within what limits it should be confined. That it is on the whole expedient that courts of justice should become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, the voices of right reason. They are in theory the utterances of justice speaking to men by the mouth of the state, but too often in reality they fall far short of this ideal. Too often they turn judgment to wormwood and make the administration of justice a reproach. Nor is this true merely of the earlier and ruder stages of legal development. At the present day our law has learned, in a measure never before attained, to speak the language of sound reason and good sense, but it still retains in no slight degree the vices of its youth. Nor is it to be expected that at any time we shall altogether escape from the perennial conflict between law and justice. It is needful, therefore, that the law should plead and prove the ground and justification of its existence. The chief uses of the law are three in number. The first of these is that it imparts uniformity and certainty to the administration of justice. It is vitally important not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state should be able to know beforehand the decision to which on any matter the courts of justice will come. This provision is impossible unless the course of justice is uniform, and the only effectual method of procuring uniformity is the observance of those fixed principles which constitute the law. It would be well were it possible for the tribunals of the state to recognize and enforce the rules of absolute justice, but it is better to have defective rules than to have none at all, for we expect from the coercive action of the state not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony in the actions and relations of its members. It is often more important that a rule should be definite, certain, known, and permanent than that it should be ideally just. Sometimes, indeed, the element of order and certainty is the only one which requires consideration, it being entirely indifferent what the rule is, so long as it exists, and is adhered to. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of some sort should be adopted and maintained. For this reason, we require in great part to exclude judicial discretion by a body of inflexible law. For this reason it is that in no civilized community do the judges and magistrates to whom is entrusted the duty of maintaining justice exercise with the free hand the very bony arbitrium. The more complex our civilization becomes, the more needful is its regulation by law, and the less practicable the alternative method of judicial procedure. In simple and primitive communities it is doubtless possible, and may even be expedient that rulers and magistrates should execute judgment in such manner as best commends itself to them. But in the civilization to which we have now attained, any such attempt to substitute the deliverances of natural reason for predetermined principles of law would lead to chaos. Reason, says Jeremy Taylor, is such a box of quick silver that it abides nowhere. It dwells in no settled mansion. It is like a dove's neck, and if we inquire after the law of nature, that is to say the principles of justice, by the rules of our reason we shall be as uncertain as the discourses of the people or the dreams of disturbed fancies. It is to be observed in the second place that the necessity of conforming to publicly declared principles protects the administration of justice from the disturbing influence of improper motives on the part of those entrusted with judicial functions. The law is necessarily impartial. It is made for no particular person and for no individual case, and so admits of no respective persons and is deflected from the straight course by no irrelevant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hair's breadth is visible to all men. But within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible. Public opinion being left without that definite guidance which is essential to its force and influence. So much is this so that the administration of justice according to law is rightly to be regarded as one of the first principles of political liberty. The legislative or supreme authority, says Locke, cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice and to decide the rights of the subject by promulgated standing laws and known authorized judges. So in the words of Cicero, we are the slaves of the law that we may be free. It is to its impartiality far more than to its wisdom, for this latter version it too often lacks, that are due the influence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it therefore men have ever been willing to submit their quarrels, knowing as Hooker says that the law doth speak with all indifferencey, that the law hath no side-respect to their persons. Hence the authority of a judgment according to law, the reference of international disputes to arbitration, and the loyal submission of nations to awards so made, are possible only in proportion to the development and recognition of a definite body of international law. The authority of the arbitrators is not, that of the law is already sufficient to maintain in great part the piece of the world. So in the case of the civil law, only so far as justice is transformed into law, and the love of justice into the spirit of law abidingness, will the influence of the judicature rise to an efficient level, and the purposes of civil government be adequately fulfilled. Finally, the law serves to protect the administration of justice from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and difficult, and there is great need of guidance from that experience and wisdom of the world at large of which the law is the record. The law is not always wise, but on the whole and in the long run it is wiser than those who administer it. To express the will and reason of the body politic and claims by that title to overrule the will and reason of judges and magistrates, no less than those of private men. To seek to be wiser than the laws, says Aristotle, is the very thing which is by good laws forbidden. Section 10 The Defects of the Law These, then, are the chief advantages to be derived from the exclusion of individual judgment by fixed principles of law. Nevertheless, these benefits are not obtained save at a heavy cost. The law is without doubt a remedy for greater evils, yet it brings with it evils of its own. Some of them are inherent in its very nature. Others are the outcome of tendencies which, however natural, are not beyond the reach of effective control. The first defect of a legal system is its rigidity. A general principle of law is the product of a process of abstraction. It results from the elimination and disregard of the less material circumstances in the particular cases falling within its scope, and the concentration of attention upon the more essential elements which these cases have in common. We cannot be sure that in applying a rule so obtained, the element so disregarded may not be material in the particular instance, and if they are so, and we make no allowance for them, the result is error and injustice. This possibility is fully recognized in departments of practice other than the law. The principles of political economy are obtained by the elimination of every motive save the desire for wealth, but we do not apply them blindfold to individual cases, without first taking account of the possibly disturbing influence of the eliminated elements. In law it is otherwise, for here a principle is not a mere guide to the due exercise of irrational discretion, but a substitute for it. It is to be applied without any allowance for special circumstances, and without turning to the right hand or to the left. The result of this inflexibility is that, however carefully and cunningly a legal rule may be framed, there will in all probability be some special instances in which it will work hardship and injustice, and prove a source of error, instead of a guide to truth. So infinitely various are the affairs of men that it is impossible to lay down general principles which will be true and just in every case. If we are to have general rules at all, we must be content to pay this price. The time on it makes them sumum us est summa inuria, is an expression of the fact that few legal principles are so founded in truth that they can be pushed to their extremist logical conclusions without leading to injustice. The more general the principle, the greater is that elimination of immaterial elements of which it is the result, and the greater therefore is the chance that in its rigid application it may be found false. On the other hand the more carefully the rule is qualified and limited, and the greater the number of exceptions and distinctions to which it is subject, the greater is the difficulty and uncertainty of its application. In attempting to escape from the evils which flow from the rigidity of the law, we incur those due to its complexity, and we do wisely if we discover the golden mean between the two extremes. Analogous to the vice of rigidity is that of conservatism. The former is the failure of the law to conform itself to the requirements of special instances and unforeseen classes of cases. The latter is its failure to conform itself to those changes in circumstances and in men's views of truth and justice which are inevitably brought about by the lapse of time. In the absence of law the administration of justice would automatically adapt itself to the circumstances and opinions of the time. But fettered by rules of law courts of justice do the bidding, not of the present, but of the times past in which those rules were fashioned. That which is true today may become false tomorrow, by change of circumstances, and that which is taken today for wisdom may tomorrow be recognized as folly by the advance of knowledge. This being so some method is requisite whereby the law which is by nature stationary may be kept in harmony with the circumstances and opinions of the time. If the law is to be a living organism and not a mere petrification it is necessary to adopt and to use with vigilance some effective instrument of legal development. And the quality of any legal system will depend on the efficiency of the means so taken to secure it against the fatal conservatism. Legislation, the substitution of new principles for old by the express declaration of the state, is the instrument approved by all civilized and progressive races. None other having been found comparable to this in point of efficiency. Even this however is incapable of completely counteracting the evil of legal conservatism. However perfect we may make our legislative machinery the law will lag behind public opinion and public opinion behind the truth. Another vice of the law is formalism. By this is meant the tendency to attribute undue importance to form as opposed to substance and to exalt the material to the level of the material. It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognizance. And a system is infected with formalism in so far as it fails to meet this requirement and raises to the rank of the material and essential that which is in truth inessential and accidental. Whenever the importance of a thing in law is greater than its importance in fact we have a legal formality. The formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter. Much legal reform is requisite if the maxim de minimus non curatlex is to be accounted anything but irony. The last defect that we shall consider is undue and needless complexity. It is not possible indeed for any fully developed body of law to be such that he who runs may read it. Being as it is the reflection within courts of justice of the complex facts of civilized existence a very considerable degree of elaboration is inevitable. Nevertheless the gigantic bulk and bewildering difficulties of our own labyrinthine system are far beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development and partly through the influence of that love of subtlety which has always been the besetting sin of the legal mind our law is filled with needless distinctions which add enormously to its bulk and nothing to its value while they render great part of it unintelligible to any but the expert. This tendency to excessive subtlety and elaboration is one that specially affects a system which like our own has been largely developed by way of judicial decisions. It is not however an unavoidable defect and the codes which have in modern times been enacted in European countries prove the possibility of reducing the law to a system of moderate size and intelligible simplicity. From the foregoing considerations as to the advantages and disadvantages which are inherent to the administration of justice according to law it becomes clear that we must guard against the excessive development of the legal system. If the benefits of law are great the evils of too much law are not small. The growth of a legal system consists in the progressive encroachment of the sphere of law upon that of fact, the gradual exclusion of judicial discretion by predetermined legal principles. All systems do to some extent and those which recognize precedent as a chief source of law do more especially show a tendency to carry this process of development too far. Under the influence of the spirit of authority the growth of law goes on unchecked by any effective control and in course of time the domain of legal principle comes to include much that would be better left to the arbitrium of courts of justice. At a certain stage of legal development varying according to the particular subject matter the benefits of law begin to be outweighed by those elements of evil which are inherent in it. Bacon has said after Aristotle Optima estilex quay minimum relinquid arbitrio judicis. However true this may be in general there are many departments of judicial practice to which no such principle is applicable. Much has been done in recent times to prime the law of morbid growths. In many departments judicial discretion has been freed from the bonds of legal principle. Forms of action have been abolished. Rules of pleading have been relaxed. The credibility of witnesses has become a matter of fact instead of as formerly one of law. A discretionary power of punishment has been substituted for the terrible legal uniformity which once disgraced the administration of criminal justice and the future will see further reforms in the same direction. We have hitherto taken it for granted that legal principles are necessarily inflexible. That they are essentially peremptory rules excluding judicial discretion so far as they extend. That they must of necessity be followed blindly by courts of justice even against their better judgment. There seems no reason however in the nature of things why the law should not to a considerable extent be flexible instead of rigid. Should not aid, guide and inform judicial discretion instead of excluding it. Should not be subject to such exceptions and qualifications as in special circumstances the courts of justice shall deem reasonable or requisite. There is no apparent reason why the law should say to the judicature. Do this in all cases whether you consider it reasonable or not. Instead of do this except in those cases in which you consider that there are special reasons for doing otherwise. Such flexible principles are not unknown even at the present day. And it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the category of the conditional. It will always indeed be found needful to maintain great part of it on the higher level. But we have not yet realized to what an extent flexible principles are sufficient to attain all the good purposes of the law while avoiding much of its attendant evil. It is probable for instance that the great bulk of the law of evidence should be of this nature. These rules should for the most part guide judicial discretion instead of excluding it. In the former capacity being in general founded on experience and good sense they would be valuable aids to the discovery of truth. In the latter they are too often the instruments of error. Section 11. General and special law. The whole body of legal rules is divisible into two parts which may be conveniently distinguished as general law and special law. The former includes those legal rules of which the courts will take judicial notice and which will therefore be applied as a matter of course in any case in which the appropriate subject matter is present. Special law on the other hand consists of those rules which although they are true rules of law the courts will not recognize and apply as a matter of course but which must be specially proved and brought to the notice of the courts by the parties interested in their recognition. In other words the general law is that which is generally applicable. It is that which will be applied in all cases in which it is not specially excluded by proof that some other set of principles has a better claim to recognition in the particular instance. Special law on the contrary is that which has only a special or particular application excluding and superseding the general law in those exceptional cases in which the courts are informed of its existence by evidence produced for that purpose. The test of the distinction is judicial notice. By this is meant the knowledge which any court ex officio possesses an axon as contrasted with the knowledge which a court is bound to acquire through the appointed channel of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignorant and of which therefore he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice. And in such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be proved to which branch of this rule there are however important exceptions. There are certain exceptional classes of facts of which because of their notoriety the law imputes a knowledge to the courts. Similarly there are certain classes of legal rules of which the courts may and indeed must hold themselves ignorant until due proof of their existence has been produced before them. These as we have said constitute special as opposed to the general law. My father larger and more important part of the legal system is general law. Judicial notice, recognition and application as a matter of course is the ordinary rule. As to this branch of the law we need say nothing more in this place but the rules of special law call for further consideration. They fall for the most part in the five distinct classes. A full account of these must wait till we come to deal with the sources of law in a subsequent chapter, but in the meantime it is necessary to mention them as illustrating the distinction with which we are here concerned. 1. Local Customs Immemorial custom in a particular locality has there the force of law. Within its own territorial limits it prevails over and derogates from the general law of the land, but the courts are judicially ignorant of its existence. If any litigant will take advantage of it he must specially plead and prove it, otherwise the general law will be applied. 2. Mercantile Customs The second kind of special law consists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law. It may make for example an instrument negotiable which by the general law of the land is not so. This customary law merchant is like local customary law special is not general, but unlike local customary law it has the capacity of being absorbed by or taken up into the general law itself. When a mercantile usage has been sufficiently established by evidence and acknowledged as law by judicial decision it is thereafter entitled to judicial notice. The process of proof need not be repeated from time to time. The result of this doctrine is a progressive transformation of the rules of the special law merchant into rules of the general law. The law of bills of exchange for example is formally part of the special law merchant requiring to be pleaded and proved as a condition precedent to its recognition and application. But successive judicial decisions based upon evidence of this special law have progressively transmuted it into general law entitled to judicial notice and to application as a matter of course. Three, private legislation. Statutes are of two kinds distinguishable as public and private. The distinguishing character of a public act is that judicial notice is taken of its existence and it is therefore one of the sources of the general law. A private act on the other hand is one which owing to its limited scope does not fall within the ordinary cognizance of the courts of justice and will not be applied by them unless specially called to their notice by the parties interested. Examples of private legislation are acts incorporating individual companies and laying down the principles on which they are to be administered. Acts regulating the navigation of some river or the construction and management of some harbor or any other enactments concerned not with the interests of the realm or the public at large but with those of private individuals or particular localities. Private legislation is not limited to acts of parliament. In most cases though not in all the delegated legislation of bodies subordinate to parliament is private and is therefore a source not of general but of special law. The bylaws of a railway company for example or of a borough council are not entitled to judicial notice and form no part of the general law of the land. Rules of court on the other hand established by the judges under statutory authority for the regulation of the procedure of the courts are constituent part to the ordinary law. Four, foreign law. The fourth kind of special law consists of those rules of foreign law which upon occasion are applied even in English courts to the exclusion of English law. Experience has shown that justice cannot be efficiently administered by tribunals which refuse on all occasions to recognize any law but their own. It is essential in many cases to take account of some system of foreign law and to measure the rights and liabilities of litigants by it rather than by the indigenous or territorial law of the tribunal itself. If for example two men make a contract in France which they intend to be governed by the law of France and one of them sues on it in an English court justice demands that the validity and effect of the contract shall be determined by French rather than by English law. French rather than English law will therefore be applied in such a case even by English judges. The principles which determine and regulate the exclusion of local by foreign law constitute the body of legal doctrine known as private international law. Foreign law so far as it is thus recognized in English courts becomes by virtue of this recognition in a certain sense English law. French law is French as being applied in France but English as being applied in England. Yet though it is then part of English law as being administered in English courts it is not part of the general law. The English courts have no official knowledge of any law save their own. 5. Conventional law. The fifth and last form of special law is that which has its source and the agreement of those who are subject to it. Agreement is a juridical fact having two aspects and capable of being looked at from two points of view. It is both the source of legal rights and the source of law. The former of these two aspects is the more familiar and in ordinary cases the more convenient but in numerous instances the latter is profitable and instructive. The rules laid down in a contract for the determination for the rights duties and liabilities of the parties may rightly be regarded as rules of law which these parties have agreed to substitute for or add to the rules of the general law. Agreement is a law for those who make it which supersedes supplements or derogates from the ordinary law of the land. Modus et conventio vin corn legium. To a very large extent though not completely the general law is not peremptory and absolute but consists of rules whose force is conditional on the absence of any other rules agreed upon by the parties interested. The articles of association of a company for example are just as much true rules of law as other provisions of the company's acts or those statutory regulations which apply in the absence of any articles specially agreed upon. So articles of partnership fall within the definition of law no less than the provisions of the partnership act which they were intended to supplement or modify. For both sets of rules are authoritative principles which the courts will apply in all the litigation affecting the affairs of the partnership. We have made the distinction between general and special law turn wholly upon the fact that judicial notice is taken of the former but not of the latter. It may be objected that this is a merely external and superficial view of the matter. General law it may be argued is so called because it is common to the whole realm and to all persons in it. While special law is that which has a special and limited application to particular places or classes of persons. In this contention there is an element of truth that it falls short of a logical analysis of the distinction in question. It is true that the general law is usually wider in its application than special law. It is chiefly for this reason indeed that the former is, while the latter is not, deemed worthy of judicial notice. But we have here no logical basis for a division of the legal system into two parts. Much of the general law itself applies to particular classes of persons only. The law of solicitors, of auctioneers, or of porn brokers is a very restricted application. Yet it is just as truly part of the ordinary law of the land as the law of theft, homicide, or libel, which applies to all mankind. The law of the royal prerogative is not special law by reason of the fact that it applies only to a single individual. It is a constituent part of the general law. On the other hand, mercantile usage is dependent for its legal validity and its generality. It must be the custom of the realm, not that of any particular part of it. Yet until by judicial proof and recognition it becomes entitled for the future to judicial notice, it is the special law merchant standing outside the ordinary law of the land. The law of bills of exchange is no more general in its application now than it ever was. Yet it has now ceased to be special and has become incorporated into the general law. The element of truth involved in the argument, no under consideration, is no more than this. That the comparative generality of their application is one of the most important matters to be taken into consideration in determining whether judicial notice shall or shall not be granted to rules of law. Section 12, common law. The term common law is used by English lawyers with unfortunate diversities of meaning. It is one of the contrasted terms in at least three different divisions of the legal system. One, common law and statute law. While the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation. It is the unenacted law that is produced by custom or precedent, as opposed to the enacted law made by parliament or subordinate legislative authorities. Two, common law and equity. In another sense, common law means the whole of the law, enacted or unenacted, except that portion which was developed and administered exclusively by the old court of chancery, in which is distinguished as equity. It is in this sense, for example, that we speak of the court of king's bench or exchequer as being a court of common law. Three, common law and special law. In yet a third sense, common law is a synonym of what we have already called general law, the ordinary law of the land, as opposed to the various forms of special law, such as local customs, which will not be applied as a matter of course in the administration of justice, but only when specially pleaded and proved. The expression common law, use commune, was adopted by English lawyers from the canonists who used it to denote the general law of the church, as opposed to those divergent usages, consuittudines, which prevailed in different local jurisdictions, and superseded or modified within their own territorial limits the common law of Christendom. This canonical usage must have been familiar to the ecclesiastical judges of the English law courts of the 12th and 13th centuries, and was adopted by them. We find the distinction between common law and special law, commune lay and a special lay well established in the earliest yearbooks. The common law is the ordinary system administered by the ordinary royal courts, and is contrasted with two other forms of law. It is opposed in the first place to that which is not administered in the ordinary royal courts at all, but by special tribunals governed by different systems. Thus we have the common law in the court of King's Bench, but the canon law in the ecclesiastical courts, the civil law in the court of Admiralty, and at a later date the law which was called equity in the court of Chancery. In the second place the common law was contrasted with those various forms of special law, which were recognized even in the King's ordinary courts in derogation of the general law of the land. Thus it is opposed to local custom, la commune lay and lay usage del pays to the law merchant, la common lay and la lay versandre, to statute law and to conventional law, specialis consentio contra use commune. The opposition of common and statute law is noteworthy. Statute law is conceived originally as special law, derogating from the ordinary law of the King's courts. It was contra use commune, just as contracts and local customs and the law merchant were contra use commune. Such a point of view indeed is not logically defensible. A public and general statute does not bear the same relation to the rest of the law as a local or mercantile custom bears to it. Logically or not however, statutes were classed side by side with the various forms of special law which derogated from the use commune. Hence the modern usage by which the common law in one of its censors means unwritten or unenacted law, as opposed to all law which has its origin in legislation. Section 13 Law and Equity Until the year 1873 England presented the extremely curious spectacle of two distinct and rival systems of law, administered at the same time by different tribunals. These systems were distinguished as common law and equity, or merely as law and equity, using the term law in a narrow sense as including only one of the two systems. The common law was the older, being co-evil with the rise of royal justice in England, and it was administered in the older courts, namely the King's Bench, the Court of Common Pleas and the Exchequer. Equity was the more modern body of legal doctrine, developed and administered by the Chancellor in the Court of Chancery as supplementary to and corrective of the older law. To a large extent the two systems were identical and harmonious, for it was a maxim of the Chancery that equity follows the law, Aquitas Seketa Leijem. That is to say the rules already established in the older courts were adopted by the chancellors and incorporated into the system of equity, unless there was some sufficient reason for their rejection or modification. In no small measure however law and equity were discordant, applying different rules to the same subject matter. The same case would be decided in one way, if brought before the Court of King's Bench and in another if adjudged in Chancery. The Judicature Act 1873 put an end to this anomalous state of things, by the abolition of all portions of the common law which conflicted with equity, and by the consequent fusion of the two systems into a single and self-consistent body of law. The distinction between law and equity has thus become historical merely, but it has not for that reason ceased to demand attention. It is not only a matter of considerable theoretical interest, but it has so left its mark upon our legal system that its comprehension is still essential even in the practical study of the law. One, the term equity possesses at least three distinct though related senses. In the first of these it is nothing more than a synonym for natural justice. Aquitas is a qualitas, the fair impartial or equal allotment of good and evil, the virtue which gives to every man his own. This is the popular application of the term and possesses no special juridical significance. Two, in a second and legal sense equity means natural justice, not simply but in a special aspect. That is to say as opposed to the rigour of inflexible rules of law. Aquitas is contrasted with sumum use or strictum use, or the rigor euros, for the law lays down general principles taking of necessity no account of the special circumstances of individual cases in which such generality may work in justice. So also the law may with defective foresight have omitted to provide it all for the case in hand, and therefore supplies no remedy for the agreed suitor. In all such cases in order to avoid injustice it is needful to go beyond the law or even contrary to the law, and to administer justice in accordance with the dictates of natural reason. This it is that is meant by administering equity as opposed to law. And so far as any tribunal possesses the power of thus supplementing or rejecting the rules of law in special cases, it is in this reuse of the term a court of equity as opposed to a court of law. The distinction thus indicated was received in the juridical theory both of the Greeks and the Romans. Aristotle defines equity as the correction of the law where it is defective on account of its generality, and the definition is constantly repeated by later writers. Elsewhere he says, an arbitrator decides in accordance with equity, a judge in accordance with law, and it was for this purpose that arbitration was introduced, namely that equity might prevail. In the writings of Cicero we find frequent reference to the distinction between Aquitas and Yus. He quotes as already proverbial the saying Sumum Yus, Summa Inuria, meaning by Sumum Yus the rigor of the law untempered by equity. Numerous indications of the same conception are to be met within the writings of the Roman jurists. The doctrine passed from Greek and Latin literature into the traditional jurisprudence of the Middle Ages. We may see for example a discussion of the matter in the Tractatus delegibus of Aquinas. It was well known therefore to the lawyers who laid the foundations of our own legal system and like other portions of scholastic doctrine, it passed into the English law courts of the 13th century. There is good reason for concluding that the King's courts of that day did not consider themselves so straightly bound by statute, custom or precedent, as to be incapable upon occasion of doing justice that went beyond the law. It was not until later that the common law so hardened into an inflexible and inexpensive system of strictum Yus that Aquinas fled from the older courts to the newly established tribunal of the Chancellor. The Court of Chancery, an offshoot from the King's Council, was established to administer the equity which the common law had rejected and of which the common law courts had declared themselves incapable. It provided an appeal from the rigid, narrow and technical rules to the King's courts of law to the conscience and equity of the King himself, speaking by the mouth of his Chancellor. The King was the source and fountain of justice. The administration of justice was part of the royal prerogative and the exercise of it had been delegated by the King to his servants, the judges. These judges held themselves bound by the inflexible rules established in their courts, but not so the King. The subject might have recourse therefore to the natural justice of the King if distrustful of the legal justice of the King's courts. Here he could obtain equitas if the strictum Yus or the law courts was insufficient for his necessities. This equitable jurisdiction of the Crown, after having been exercised for a time by the King's Council, was subsequently delegated to the Chancellor who, as exercising it, was deemed to be the keeper of the royal conscience. Three, we have now reached a position from which we can see how the term equity acquired its third and last signification. In this sense, which is peculiar to English nomenclature, it is no longer opposed to law, but is itself a particular kind of law. It is that body of law which is administered in the court of Chancery as contrasted with the other and rival system administered in the common law courts. Equity is Chancery law as opposed to the common law. The equity of the Chancery has changed its nature and meaning. It was not originally law at all, but natural justice. The Chancellor, in the first days of his equitable jurisdiction, did not go about to set up and administer a new form of law, standing side by side with that already recognized in the court of common pleas. His purpose was to administer justice without law, and this purpose he in fact fulfilled for many a day. In its origin, the jurisdiction of the Chancellor was unfettered by any rules whatever. His duty was to do that with justice and reason and good faith and good conscience required in the case, and of such requirements he was in each particular case to judge at his own good pleasure. In due time, however, there commenced that process of the encroachment of established principle upon judicial discretion, which marks the growth of all legal systems. By degrees, the Chancellor suffered himself to be restricted by rule and precedent in his interpretation and execution of the dictates of the royal conscience. Just in so far as this change proceeded, the system administered in Chancery ceased to be a system of equity in the original sense, and became the same in essence as the common law itself. The final result was the establishment in England of a second system of law standing over against the older law, in many respects an improvement on it, yet no less than it, a scheme of rigid technical predetermined principles, and the law thus developed was called equity, because it was an equity that it had its source. Closely analogous to this equity law of the English Chancellor is the use praetorium of the Roman praetor. The praetor, the supreme judicial magistrate of the Roman republic, had much the same power as the Chancellor of supplying and correcting the deficiencies and errors of the older law by recourse to equitas. Just as the exercise of this power gave rise in England to a body of Chancery law, standing by the side of the common law, so in Rome a use praetorium grew up distinct from the older use sevilla. Use praetorium, says Papinian, est quad praetores, intro d'uxerunt, adjuvandi, vel supplendi, vel corrigendi, urus civilis grattia, propta uttala tartam publicum. The chief distinction between the Roman and the English cases is that at Rome the two systems of law coexisted in the same court. The use praetorium practically superseding the use sevilla, so far as inconsistent with it. Whereas in England, as we have seen, law and equity were administered by distinct tribunals. Moreover, although the use praetorium had its source and the equitas of the praetor, it does not seem that this body of law was ever itself called equitas. This transference of meaning is peculiar to English usage. End of chapter two part two, recording by Ian Stewart, Rosanna, Victoria, Australia.