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ESSAYS IN THE LAW 
 
MACMILLAN AND CO., Limited 
 
 LONDON • BOMBAY ■ CALCUTTA ■ MADRAS 
 MELBOURNE 
 
 THE MACMILLAN COMPANY 
 
 NEW YORK • BOSTON • CHICAGO 
 DALLAS • SAN FRANCISCO 
 
 THE MACMILLAN CO. OF CANADA, Ltd. 
 
 TORONTO 
 
ESSAYS IN THE LAW 
 
 BY 
 
 THE RIGHT HON. 
 SIR FREDERICK POLLOCK, BART. 
 
 LL.D., D.C.L., K.C. 
 
 MACMILLAN AND CO., LIMITED 
 
 ST. MARTIN'S STREET, LONDON 
 1922 
 
COPYRIGHT 
 
 PRINTED IN GREAT BRITAIN 
 

 TO 
 MY FRIEND AND FELLOW-WOEKEK 
 
 PAUL VINOGEADOFF 
 
PEEFACE 
 
 These papers, written at various times in the last 
 thirty years or so, are now collected at the instance 
 of certain learned friends. As the title denotes, the 
 treatment is from a lawyer's point of view through- 
 out, but the subject-matter is strictly professional 
 in only two or three cases, and may be not less 
 interesting on the whole to historical than to legal 
 students. 
 
 Supplemental matter is in the main confined to 
 the notes, and the text left to speak as at the date of 
 first publication. Lapse of time is, however, now 
 and then smoothed over by the change of a few 
 words, and in the account of Arabiniana, that 
 strange little book which fulfils all the conditions of 
 a law report quotable in court, though it is of no 
 conceivable use for that purpose, the biographical 
 details are amended from later information. 
 
 Eeferences to the places of original publication 
 (a thing I have often missed in other men's works) are 
 given throughout for the convenience of cataloguers 
 and bibliographers, whose deserving labours are not 
 yet sufficiently recognised and assisted in the world 
 of letters. 
 
 Lincoln's Inn, April 1922. 
 vii 
 
CONTENTS 
 
 I. The HiSTOllY of CoMI'AHATIVE JURISPUnDENCE PAGE 
 
 The subject and name modern ..... 1 
 
 Methods of comparison .... .4 
 
 Evolution in political and natural science . . .10 
 
 Early forms of comparative legal study . . .12 
 
 Common and Canon Law in England : St. German . 1 6 
 
 Leibniz, Montesquieu, Vioo . . . . .18 
 
 Modern development ... . . 25 
 
 II. The Histoky op the Law op Natuee — 
 
 I. Origins : Aristotle : Stoics . . . .31 
 
 Roman ius gentium and ins naturale . 34 
 
 The Middle Ages 38 
 
 Natural, divine, and positive law ... 42 
 
 Imperial and Papal controversialists . . .45 
 
 The Reformation controversies . . . .49 
 
 England : Fortescue : Chancery : Law Merchant . 5 3 
 " Reason " in the Common Law .... 57 
 
 Hobbes : Later transformation . . . .59 
 
 II. Modern Law of Nations : Grotius . . .62 
 
 Lord Stowell . . . . . . .66 
 
 Natural justice iu the Common Law ... 68 
 British possessions abroad ... .73 
 
 "Justice, equity, and good conscience" . . .75 
 
 Singular case of Penang . . . . .76 
 
 III. Locke's Theory op the State — 
 
 Apologia for the Convention Parliament ... 80 
 Locke's criticism of Eilmer, why not expressly of 
 
 Hobbes 81 
 
 Influence of English legal doctrine .... 85 
 Locke on the state of nature . . . . .87 
 
ESSAYS IN THE LAW 
 
 III. Locke's Theory op the State {continued) — page 
 
 Locke on natural right of property .... 90 
 
 Locke on political allegiance ..... 92 
 Locke on legislative authority ... .95 
 
 Locke on the executive . . . . 97 
 
 Locke on parliamentary representation . . 99 
 
 Later influence of Locke . . . 101 
 
 Appendix : The Social Contract in Hohhes and Locke 102 
 
 IV. Government by Committees in England — 
 
 The place of committees in English affairs . 110 
 
 The word 112 
 
 Varieties in composition and functions . . 113 
 
 Committees of the King's Council . 1 IV 
 
 The Judicial Committee . . . . ■ .119 
 
 Administrative committees . . .121 
 
 Modern nominal Boards . . . .123 
 
 The Cabinet 124 
 
 The Imperial Defence Committee . . . 126 
 
 Parliament: " Committee of the whole " . .130 
 
 Committees in Civil War time . . . .131 
 
 Government of the Inns of Court . 134 
 
 Council of Law Reporting . . . . 137 
 
 V. Gifts of Chattjsls without Delivery — 
 
 The question proposed . . ... .141 
 
 Principle and authority . . . . . .143 
 
 Gift at election . . . . . . .144 
 
 Archaic doctrine ....... 145 
 
 Where custody with donee or third person . .146 
 
 VI. Has the Common Law received the Fiction Theory 
 OP Corporations ? — 
 
 " Artificial Person " ill English law , . 153 
 
 Modern dicta . . . . . .155 
 
 Statutory limitations . . . . . .158 
 
 Blackstone ..... . . 160 
 
 The Sttifon's if ospitaZ case . . . . .163 
 
 Sir John Da vies . . . . . . .171 
 
 Summary of seventeenth-century doctrine . . .174 
 
 The Year Buoks .175 
 
CONTENTS 
 
 XI 
 
 VII. The Transformation of Equity — 
 
 PAGE 
 
 General notion and purpose of Equity . . .180 
 Dispensing power ....... 182 
 
 Compromise in early law . . . . .185 
 
 Equitable jurisdiction of justices in eyre . . . 187 
 
 Witchcraft in the Chancery . , . ' . 190 
 
 St. German on Equity . . . . . .192 
 
 Chancery and the Pilgrim Fathers . . . .194 
 
 Chancery Division not a court of conscience . .195 
 
 Appendix : A Note on Shylock v. Antonio . .196 
 
 VIII. Archaism in Modkrn Law — 
 
 Ceremonial survivals .... . 200 
 
 Formalism without executive power .... 203 
 Archaic proofs and pleading ..... 204 
 Solemnity of charters ... . . 208 
 
 The grand jury . . . , . . .210 
 
 Unanimity of petty jury . . . . .215 
 
 Sale of goods : archaism restored by Statute of Frauds 218 
 Germanic seisin and Koman dominium . . . 220 
 
 IX. Judicial Records — 
 
 " Reference to the record " ..... 222 
 
 Henry of Bratton and later pleaders . . .223 
 
 What is a court of record ? ..... 229 
 
 Relation of records to reports . . . .231 
 
 Procedure and substantive law . . . .235 
 
 Study of medieval law at Universities . . 237 
 
 Semi-judicial records ...... 239 
 
 Useful books .... . . 239 
 
 X. English Law Reporting — 
 
 The Law Reports not official 
 Constitution and method 
 The reporter's work 
 Preparation and publication 
 
 XI. Lay Fallacies in the Law— 
 
 The law not an ethical code 
 Misunderstanding of Cicero 
 
 242 
 247 
 251 
 255 
 
 259 
 260 
 
ESSAYS IN THE LAW 
 
 XI. Lay Fallacies in the Law (continued) — 
 
 PAGE 
 
 And of Horace . ... . 263 
 
 Non-etliical positive rules . . , . 267 
 
 Moral influence of legal standards .... 268 
 Professional discipline . ... 270 
 
 European law in the East . . . .271 
 
 Law as a work of art . . .273 
 
 Judicial function not inquisitorial . . . .275 
 
 Administrative jurisdiction . . 276 
 
 Jarndyce v. Jarndyce . . . .277 
 
 XII. Reformation and Modern Doctrine of Divorce — 
 
 Ambiguities ........ 279 
 
 The Reformatio Leguni ...... 280 
 
 Elizabethan practice . . . . .281 
 
 Mr. Kitchin'a book . . . 282 
 
 Marriage not an ordinary contract .... 283 
 
 The Roman Republican custom . . .284 
 
 The report of the Royal Commission . . 285 
 
 Rome and the German Civil Code . . . 286 
 
 XIII. Arabiniana — 
 
 Serjeant Arabin . . . .287 
 
 His justice ...... 289 
 
 Extracts from his dicta . . 291 
 
 A. reprinted at Philadelphia . . . 298 
 
 Sydney Smith commends A. . . 299 
 
 Correct in form as a book of reports . . 300 
 
 INDEX 
 
 301 
 
I 
 
 THE HISTORY OF COMPARATIVE 
 JURISPRUDENCE ^ 
 
 The name of comparative jurisprudence is modern ; 
 our current use of the term, with, the full meaning 
 which it now bears, is barely a generation old. It 
 seems that about, or possibly before, 1830, some one 
 applied the name of general or comparative juris- 
 prudence to the process of ascertaining the " principles 
 common to maturer systems " of law, " or the various 
 analogies obtaining between them " ; the result of 
 which process, it seems to have been supposed, would 
 be a system of universal principles of positive law.^ 
 We are not now concerned to enquire what useful 
 results we should derive from the proposed opera- 
 tion ; I do not think any one would now maintain 
 that a philosophy of law was likely to be among them. 
 Whatever may be the value of the process or method 
 thus indicated, it is not what we now call comparative 
 
 1 A farewell lecture delivered in the University of Oxford on January 
 24, 1903, with a few later corrections and additions. 
 
 2 Austin's fragment On the Uses of the Stvdy of Jurisprudence, written 
 in 1834 (A. on Jurisp., ed. 1869, ii. 1107). I have not been able to discover 
 what writer is alluded to. 
 
 1 B 
 
2 ESSAYS IN THE LAW 
 
 jurisprudence or droit compare. In the succeeding 
 generation a learned and brilliant reviewer of the 
 first edition of Maine's Ancient Law, whom I am 
 permitted to identify as Mountague Bernard, wrote 
 thus : " The fields of study immediately adjacent 
 to Law are History and Ethics, each of which, indeed, 
 may be so extended as to include a great portion of 
 it ; while law itself embraces a vast region, the 
 domain of comparative jurisprudence, of which 
 English Law forms a small province." ^ No further 
 light is thrown by the context on the precise meaning 
 to be attached to the term. The learned writer, 
 however, fully recognised that existing legal institu- 
 tions cannot be understood without some knowledge 
 of their history, and therefore he cannot be supposed 
 to have regarded comparative jurisprudence as a 
 thing standing apart from historical study and 
 discrimination. Still, its object seems to have been 
 conceived as practice rather than knowledge, the 
 collection of materials for useful amendment or 
 assimilation of existing laws rather than any scientific 
 or philosophical construction. In technical terms, 
 comparative jurisprudence was regarded wholly or 
 ymainly as a handmaid to the theory of legislation. 
 About ten years later we find Sir Henry Maine 
 himself speaking of comparative jurisprudence, in 
 his opening lecture on Village Communities, as not 
 having for its object to throw light upon the history 
 of law. " What it does is to take the legal systems 
 of two distinct societies under some one head of law 
 
 1 Qtiart. Rev. ex. 115_(July 1861). 
 
I COMPARATIVE JUEISPRUDENCE 3 
 
 — as, for example, some one kind of Contract, or the 
 department of Husband and Wife — and to compare 
 these chapters of the systems under consideration. 
 It takes the heads of law which it is examining at 
 any point of their historical development, and does 
 not affect to discuss their history, to which it is 
 indifferent. " Maine goes on to"state, as a proposition 
 " universally admitted by competent jurists, that, if 
 not the only function, the chief function of compara- 
 tive jurisprudence is to facilitate legislation and the 
 practical improvement of law." The use of it is 
 that " by the examination and comparison of laws " 
 and methods of legal reasoning " the most valuable 
 materials are obtained for legal improvement." He 
 adds that the enquiry to be pursued in the following 
 lecture — ^namely, the examination of the tenure of 
 land, with its legal and economic incidents, in certain 
 parts of India, in comparison with the history of 
 corresponding institutions in Europe — " can only be 
 said to belong to comparative jurisprudence, if the 
 word ' comparative ' be used as it is used in such 
 expressions as ' comparative philology ' and ' com- 
 parative mythology.' " It seems to us, at this day, 
 difficult to understand why any one should have taken 
 exception to such use ; and in fact the analogy of 
 comparative jurisprudence to comparative philology 
 was clearly stated as early as 1857 by Emerico Amari, 
 of whom I shall speak later. Maine, however, con- 
 tinues, in a rather apologetic tone : " I think I may 
 venture to affirm that the comparative method, ^ 
 which has already been fruitful of such wonderful 
 
4 ESSAYS IN THE LAW 
 
 results, is not distinguishable in some of its applica- 
 tions from the historical method." It is curious to 
 see how far the master still was, ten years after the 
 publication of Ancient Law, from realising the im- 
 portance of his own work. If there is anything we 
 have learnt from Sir Henry Maine, it is that intimate 
 alliance between comparative and historical research 
 is not only natural and desirable, but necessary\for 
 
 ^ either branch of work being efficiently done. If 
 there is any book to which a modern teacher would 
 point as a typical example of what is meant by 
 comparative jurisprudence, it is this very series of 
 lectures on Village Communities in the East and 
 West. Maine's hesitation seems to have been a kind 
 of expiatory offering to the ghosts of those mechanical 
 and external conceptions of human institutions which 
 he did so much to destroy — if indeed there can be 
 ghosts of vain shadows that never had any life. 
 
 No doubt the method is important and not the 
 name. It makes no great difference whether we 
 speak of historical jurisprudence or of comparative 
 jurisprudence, or, as the Germans seem inclined to 
 do, of the general history of law.^ What does matter 
 is understanding that comparison of institutions is 
 profitable only when we take account of the stage of 
 
 ^ civilisation and of special development to which the 
 
 ^ Die Universalrechtsgeschichte, die man auch vergleieheude Rechts- 
 wissenschaft zu nennen pflegt, hat die Aufgabe, wo moglich die Rechte 
 aller Volker zu eriorsohen, der lebenden wie der toten, und diese Rechte zu 
 erforsohen, nicht nur was die objektive Rechtsordnung, soudem auch was 
 
 die Betatigung der Rechtsordnung im subjektiven Rechtsleben betrifft. 
 
 J. Kohler in Encyklop. d, EecMswis^enschaft, 6th ed., 1902, pp. 17-18. 
 
COMPARATIVE JURISPRUDENCE 5 
 
 terms to be compared belong. The mere order of 
 time has next to nothing to do with it, as one or two 
 examples will readily show. 
 
 If we compare the Roman law of property which 
 Papinian administered at York seventeen centuries 
 ago with the English law of real property which the 
 Court of Appeal now administers in London, it will 
 be for the purpose of throwing light not on anything 
 in the past history of English law, but on what 
 English law may tend to become in the days of our 
 children or grandchildren ; for the classical law of 
 Rome is, in all essentials, far more modern in every- 
 thing relating to the ownership and disposition of 
 landed property than the mediaeval system, eked 
 out with cumbrous and piecemeal alterations, which 
 still serves our turn. On the other hand, the commer- 
 cial law of the Roman Empire under the Antonines 
 and even under Justinian was archaic and rudi- 
 mentary as compared with the modern development 
 of the law merchant. Ulpian would have stared and 
 gasped alike at a strict settlement and at a debenture 
 payable to bearer, but for wholly different reasons. 
 If, again, Papinian could have been transported from 
 York to India, he would have found millions of men 
 living under systems of family law so ancient that 
 only faint vestiges of a corresponding stage could be 
 found in Roman traditions and forms ; and if he 
 could now visit " Agra and Lahore of Great Mogul," 
 he would find, the same rules still being administered 
 by English judges, having indeed suffered something 
 of secular change, and more in some provinces than 
 
6 ESSAYS IN THE LAW 
 
 in others, but little changed on the whole in com- 
 parison with their world-wide difference from any 
 modern Western law. To compare the institutions 
 of Indian law and custom directly with modern 
 English law can lead to nothing but ludicrous if not 
 dangerous misunderstandings ; as indeed happened 
 in at least one celebrated instance. 
 
 It is true that, as Maine said, the provisions of 
 different systems, taken at stages of development 
 sufficiently corresponding to afford a real parallelism, 
 can be compared, in form or on their substantial 
 merits, without any explicit historical criticism. 
 You cannot compare the law of the Twelve Tables 
 as to execution against a debtor with, say, the Indian 
 Civil Procedure Code, except by working through a 
 great deal of intermediate history. But you can 
 compare one modern Western law of companies or 
 of insolvent debtors with another, taking them just 
 as they stand. Even in these cases, however, we 
 shall not find it easy to keep out history. Suppose 
 we are comparing the modern law of bankruptcy in 
 France and England. We cannot help noting the 
 fact that French law makes a sharp distinction 
 between persons engaged and persons not engaged 
 in trade, and EngUsh law does not ; and the manner 
 in which we account for this difference may (I do not 
 say that it will) have some bearing on our conclusion 
 as to the practicability or utility of assimilating the 
 treatment of insolvent estates under the two systems. 
 Then, if we wish to arrive at the reasons for English 
 legislation and jurisdiction not dealing with commer- 
 
1 COMPAKATIVE JURISPRUDENCE 7 
 
 cial law as a tMng apart, or at any rate to avoid 
 giving wrong reasons, we may have to go back as 
 far as the iacorporation of the law merchant into the 
 Common Law in the eighteenth century, perhaps 
 farther. More than this, the working life of any body 
 of law depends not merely on its authentic texts and 
 the decisions or books that interpret them, but on 
 complex influences of professional training, tradition, 
 and habit of mind. We can appreciate a foreign or 
 antiquated system only by learning to see it in its 
 proper historical atmosphere. ■ Do we say, then, that 
 history is everything and comparison nothing, or 
 that comparative enquiry is merely an application 
 of the historical method ? By no means. The 
 merely national or provincial history of an institution 
 is, except by the rarest accident, as little satisfying 
 or intelligible as the anatomy of a single species or 
 the inflexions of a single language. Many parts of 
 English law, taken alone, present in their develop- 
 ment what seems to be grotesque aberrations. Such 
 is the manner in which the king's judges, at the 
 very end of the Middle Ages, assumed, or rather 
 accepted, jurisdiction to enforce informal promises. 
 At first sight nothing can be more absurd in modern 
 students' eyes than that one of the most elementary 
 duties of civil life and business should have been 
 left for centuries, in its purely religious or moral 
 aspect, to the protection of the spiritual Courts, and 
 then brought within the temporal sphere by a process 
 hardly to be distinguished from fiction in its earlier 
 and certainly involving fiction in its later stages. 
 
8 ESSAYS IN THE LAW ' 
 
 When we turn to the antiquities of Greek and 
 Roman legal forms, we fiiid many traces of a period 
 when the obligation of promises could at most be 
 religious, and religious only. It is now accepted 
 doctrine that the Roman sponsio was originally a 
 religious ceremony creatiug a spiritual sanction. We 
 find, in later times, the religious sanction of plighted 
 faith persisting throughout Europe in the Middle 
 Ages, whether derived from popular Roman tradition, 
 or from an independent though similar Germanic 
 origin, or from a conjunction of both. St. Francis 
 not only makes the reconciled wolf give him his paw 
 in token of faith, but repeats the ceremony (like a 
 good man of business, for it is a vulgar error to 
 suppose that enthusiasts are necessarily unbusiness- 
 like) with the witness of the townsmen of Gubbio. 
 And we see that the curious English history of fidei 
 laesio and the action of assumpsit is part of a normal 
 and widespread process, though belated in time. 
 I have taken a striking example with which I happen 
 to be familiar, as it was in this region that I fii'st 
 learnt the necessity for basing any sound dogmatic 
 theory of modern English law on knowledge of the 
 mediaeval authorities. But it must not be supposed 
 that the example is singular. English land law 
 cannot be understood at all without a great deal of 
 historical explanation ; it cannot be understood very 
 well without learning how peculiar the English history 
 of land tenure was, from the Norman Conquest onwards 
 — in other words, without comparing the divergent 
 fortunes of English and Continental feudalism. 
 
I COMPAKATIVE JURISPRUDENCE 9 
 
 As the need for both historical and comparative 
 study is most strongly illustrated in the Common 
 Law, so are the consequences of neglecting or under- 
 rating them. Blackstone was a respectable historical 
 scholar according to the standard of his time, and 
 much good history is in fact to be found in his 
 Commentaries. But there are also several more or 
 less ingenious but wholly groundless conjectures, 
 and, especially in the earlier period, not a few down- 
 right errors ; and these are, I think, always accounted 
 for by insufl&cient command of the historical data. 
 I am far from denying that shortcomings of this 
 kind were often excusable, or even inevitable, having 
 regard to the amount and condition of the materials 
 available when Blackstone wrote. Departments of 
 our law might be mentioned in which text-writers 
 have continued, even in our own time, to repeat 
 much less plausible fictions with much less excuse. 
 There is, or was, a still more dangerous temptation 
 — that of regarding comparative illustration as a 
 matter of mere ornament, and omitting to make 
 sure that the less familiar term of the 'comparison is 
 correctly apprehended. Some of Blackstone's refer- 
 ences to Roman law cannot be acquitted of negligence, 
 for they involve misunderstandings of elementary 
 doctrine from which any civilian in Doctors' Commons 
 or at Oxford could have saved him. Warnings on 
 this score, however, ought not to be required by 
 serious workers at this day. The perils that now 
 beset us are more subtle. We may be too eager to 
 see historical afl&nities between rules or customs which 
 
10 ESSAYS IN THE LAW i 
 
 are really the similar but independent result of similar 
 circumstances in distant times and places. An ap- 
 parent coincidence may beguile us into proclaim- 
 ing that something in modern usage is a surviving 
 fragment of prehistoric manners, without satisfying 
 ourselves that the supposed survival, as we find it, 
 is general or ancient, or that it has not a discoverable 
 history which our conjecture will not fit. In our 
 desire to have a sort of normal growth of national 
 custom, we may fail to leave sufficient room for the 
 disturbing influence of foreign institutions, and not 
 only for " contamination," as the philologists call it, 
 but for actual deliberate imitation. Errors of judge- 
 ment are possible in all these ways and more, and 
 there is no royal road for keeping clear of them. 
 Only experience will teach us to feel an instinctive 
 mistrust when we are entering a perilous atmosphere ; 
 to work cautiously as miners who have to work 
 underground ; and not to deem ourselves shining 
 lights when our lamps are glowing only with the 
 fire-damp of rash speculation, presently to explode 
 and be succeeded by the choke-damp of deserved 
 oblivion. 
 
 At present vindication of the historical and 
 comparative method in law and politics may be 
 thought superfluous. We may rather be inclined to 
 ask why its importance was recognised so late. The 
 fact is that the transformation of political science 
 about forty years ago ^ cannot be disconnected from 
 the all but simultaneous putting forth of new and 
 
 ^ I.e. from 1860 onwards. 
 
COMPAEATIVE JURISPEUDENCE 11 
 
 far-reaching ideas in the study of organic nature. 
 Ancient Law and The Origin of Species were really 
 the outcome, in different branches, of one and the 
 same intellectual movement — that which we now 
 associate with the word Evolution. This identity 
 of spirit was not perceived at the time. The same 
 organs of lettered and respectable opinion which 
 gave Maine's work the welcome of just, though 
 perhaps barely just, praise, were still wasting paper 
 and ink on denunciations, as crude as they were 
 inefiectual, of Darwin. The triumph of the con- 
 structive historical method had been assured in both 
 natural and moral science by half a century's work of 
 specialists almost unknown to the general public, 
 and seldom acquainted with or interested in one 
 another's researches ; and the disclosure of the 
 results, when the time was ripe, came like thunder 
 from a clear sky. Ten years later the lines of thought 
 which had seemed shocking or paradoxical were 
 familiar ; after ten years more it was hard to re- 
 member that they had ever been strange. We do 
 not know why these things should have happened 
 just when they did. We can say that the historical 
 temper of the nineteenth century was due to reaction 
 against the didactic rationalism of the eighteenth, 
 and that rationalism, again, was provoked by the 
 futile conflict of dogmatic claims in the wars of 
 religion which succeeded the Reformation and lasted 
 till near the middle of the seventeenth century. But 
 we cannot fix more positively the causes which 
 postponed modern historical criticism till our own 
 
12 ESSAYS IN THE LAW 
 
 time, any more than we can fix those wliicli prevented 
 experimental science from making any appreciable 
 progress in the age, at first sight not wanting in favour- 
 able conditions, of Augustus or of the Antonines. 
 
 Anticipations of comparative enquiry may certainly 
 be found in jurisprudence as well as in other kinds 
 of learning. Many of these were ingenious, and 
 some important ; but, so far as they consisted of 
 observation, they were detached and merely empirical, 
 and, so far as they were speculative, they were barren 
 for want of continuity, having no relation with any 
 certain doctrine or method. Some instruction can 
 be derived from considering these earlier attempts. 
 They will show us, at least, what a little way the 
 most laudable curiosity without method will carry 
 us towards scientific results, and how much better an 
 imperfect method is than none. 
 
 Probably the earliest form of the comparative 
 study of institutions was the observation that those 
 of another commonwealth were in some way better 
 than one's own, followed by deliberate imitation of 
 them. News did not spread in the ancient world 
 so fast as it is distributed now, but it did spread. 
 The fame of a great legislator travelled, and lost 
 nothing in travelling. Whether the name of Minos 
 contains any historical element or not, we need not 
 doubt that in the prehistoric time of which we are 
 just beginning to learn something the superior 
 civilisation of Crete attracted many pilgrims and 
 ambassadors from many coasts and islands of the 
 Mediterranean. Stories of this kind may be legend- 
 
COMPARATIVE JURISPRUDENCE 13 
 
 ary in. detail, but are not to be dismissed wbolesale 
 as mere fiction. Indeed, their general credibility is 
 increased by the recent discovery that the introduc- 
 tion of writing in Europe dates much farther back 
 than we had supposed. If laws existed in writing, 
 they could be copied. The supposed absence of 
 writing was one of the chief difficulties in believing 
 adoption by less advanced communities of improve- 
 ments effected in the more advanced ones to have 
 been common in very early times ; and this diffi- 
 culty is now removed. The classical example of 
 the Twelve Tables, at all events, is within historical 
 times and not open to exception. Whether we accept 
 the received account, or are persuaded by the learned 
 and ingenious argument of M. Lambert of Lyons ^ 
 that the Tables are a custumal of the second century 
 B.C., and the decemvirs legendary characters, matters 
 very little for the present purpose. It is certain that 
 the Twelve Tables, whatever be their real date and 
 original authority, show a considerable amount of 
 borrowing from Greek sources, as the Roman anti- 
 quaries of the Empire fully recognised. 
 
 It is a more doubtful question whether the Roman 
 ius gentium was formed by any process that can be 
 fairly described as comparison or selection. We 
 know that it sprang from the necessity of administer- 
 ing justice between parties to one or both of whom 
 the law of Roman citizens was not applicable ; we 
 
 ^ In the Bevue generale du droit, 1902-3. This hypothesis was discussed 
 in the legal section of the Historical Congress held at Rome in April 1903. 
 None of the learned Romanists present — ^French, German, or Italian — ^were 
 disposed to agree with it. I do not think much has been heard of it since. 
 
14 ESSAYS IN THE LAW 
 
 may safely guess that in most cases the parties had 
 no desire to be judged according to Roman law. 
 We do not know by any direct evidence from what 
 materials or on what principles a common rule was 
 constructed. But in Latin literature the name 
 signifies generally received custom, as my late col- 
 league, Prof. Nettleship, has shown. It seems prob- 
 able that the practice of Mediterranean traders had 
 fixed a certain amount of custom for the regulation 
 of their business among themselves, and one would 
 think the Roman magistrate was more hkely to adopt 
 and sanction an existing mercantile custom, when 
 ascertained, than to invent some new rule according 
 to his own notions of justice. Professional and 
 scientific development of the rules thus taken into 
 Roman jurisprudence came, as it could not but 
 come, later. In short, it seems reasonable to suppose 
 that the reception of the ius gentium in the Roman 
 law was not much unlike the establishment of the 
 law merchant, many centuries later, as part of the 
 Common Law. If these considerations are entitled to 
 any weight, we can hardly give credit to the Prsetor 
 Peregrinus for having founded the science of compara- 
 tive jurisprudence, and we may even think that de- 
 liberate comparison and selection had very little to do 
 with the formation of the ius gentium at any stage. 
 
 Rudiments of both comparative and historical 
 research occur in the works of the classical Roman 
 lawyers. Gains not only traces imitation of the 
 laws of Solon in the Twelve Tables, but is curious 
 about an alleged parallel in Galatian custom to the. 
 
COMPAEATIVE JUEISPEUDENCE 15 
 
 Roman patria potestas, and mentions that in early 
 law spoil of war was regarded as tlie highest form 
 of property {maxime sua credebant esse quae ex hostibus 
 cepissent) — a light on the possible origin of private 
 ownership in movables which seems to be in the 
 right direction. But such passages are few and 
 desultory. Homer might now and again furnish an 
 elegant illustration ; it did not occur to any one 
 that archaic and provincial usage, whether recorded 
 in literature or surviving in practice, deserved any 
 systematic study. As the forms of imperial govern- 
 mient became more and more centralised and official, 
 any such enquiry became still more remote from the 
 probable scope of an educated man's pursuits. No 
 attempt was made to increase Aristotle's collection 
 of notes on the political institutions of many states 
 and tribes, which would have been priceless to 
 modern anthropologists and of great value to legal 
 history. It does not appear that any pains were 
 taken to preserve it. Except for the treatise on the 
 Constitution of Athens, discovered in our own time, 
 we know this part of Aristotle's work only by 
 tradition. 
 
 The fall of the Roman Empire restored ample, 
 and more than ample, variety to the laws and customs 
 of Europe ; but it is superfluous to point out that the 
 accompanying condition of society was not favourable 
 to disinterested scientific treatment of the material. 
 When learning and speculation were painfully revived 
 in the Middle Ages, and began to assume new forms, 
 the general ideal of thinking men was the restoration 
 
16 ESSAYS IN THE LAW 
 
 of peace by general submission to some superior and 
 universal authority. The champions of the Pope 
 and of the Emperor criticised one another freely, but 
 the criticism was altogether remote from historical 
 investigation. People who quite honestly believe 
 themselves to possess infallible means of knowing 
 what ought to be will hardly spend their time on the 
 humbler task of learning from the experience of 
 what has been. Besides, the professional learning 
 of both theologians and jurists was dominated by 
 the cosmopolitan tradition of Roman law. The case 
 of England was an exception, but exclusive devotion 
 to the Common Law, heightened by not a little 
 jealousy of any attempt at encroachment on the 
 part of either canonists or civilians, was not a direct 
 way to serious comparative enquiry. Still, it is 
 remarkable that the nearest approaches to compara- 
 tive criticism, down to the seventeenth century, were 
 made by Englishmen. Sir John Fortescue, when he 
 followed his master Henry VI. into exile, considered 
 French political and legal institutions, and recorded 
 his reflexions in his two principal works, on The 
 Governance of England and De Laudibus Legum 
 Angliae. It is true that he does not at all concern 
 himself to account for the laws or customs of the 
 French monarchy, and compares them with those of 
 England only to triumph over them as in every way 
 inferior ; but he does compare them. 
 
 In the sixteenth century Christopher St. German, a 
 very learned lawyer, undertook a much more serious 
 and critical piece of work, probably with a view to 
 
I . COMPARATIVE JURISPRUDENCE 17 
 
 conciliation. The co-existence of the Common Law 
 with the Canon Law in England had produced a 
 considerable amount of competition for business 
 between the lay and the spiritual Courts, besides 
 the political conflicts which belong to general history. 
 Not the least of the causes of the Reformation in 
 England was the popular dislike of the Courts Chris- 
 tian for their minute and vexatious enforcement 
 of moral discipline. On the other hand, by regarding 
 breach of faith as an ecclesiastical ofience, they 
 practically acted as petty civil Courts in many cases 
 where the Common Law, down to the latter part of 
 the fifteenth century, did not provide any remedy. 
 Thus the points of contact and friction between the 
 temporal and the spiritual jurisdiction were many. 
 St. German lived in the heat of the Reformation 
 and wrote his well-known book, Doctor and Student, 
 somewhere about 1520. It is now remembered, and 
 is still useful, as a learned and accurate statement 
 of the Common Law as it then stood ; but it is in 
 fact a comparative exposition of the two systems, 
 the Doctor of Divinity and Student of the laws of 
 England taking their turns. The general object 
 seems to be to satisfy persons not learned in the 
 Common Law, by detailed examples and illustration, 
 that on the whole it is a consistent and reasonable 
 system, and apparent contradictions of the rule of 
 conscience as it might appear to a canonist are 
 explicable when they are placed in their proper 
 context. There is no historical enquiry and very 
 little direct criticism, but there is comparison of two 
 
18 ESSAYS IN THE LAW 
 
 systems of legal ideas and rules, undertaken with, a 
 definite purpose, and conducted by an author well 
 acquainted with both. At the beginning of the next 
 century (1602) William Fulbecke, apparently seeking 
 to improve on St. German's example, produced his 
 Parallel or Conference of the Civil Law, the Canon 
 Law, and the Common Law of this Realm of England. 
 This is an ambitious attempt, covering a wider field 
 and expressed in dialogues between several persons, 
 whom the author adorned with such names as 
 " Anglonomophylax " and " Codicgnostes " {sic). It 
 is called a comparative discourse in the dedication 
 of the second part to the Archbishop of Canterbury. 
 As a whole the book is tedious, ill-constructed, and 
 uncritical. It never acquired any serious reputation, 
 and there is no modern edition of it. St. German's 
 Doctor and Student has not only been many times 
 repubhshed, but is to this day counted by the 
 followers of the Common Law among their " books 
 of authority." I do not think it would be any 
 disparagement to a modern EngUsh or American 
 lawyer's learning if he had never heard of Fulbecke. 
 
 We now come to greater names. Leibniz, among 
 many other schemes never completed, formed that 
 of a universal historical and comparative survey of 
 legislation {theatrum legale).'^ But he never did 
 
 1 Nova Methodus discendae docendaeque lurisprudentiae, Francf. 1667, 
 part ii. § 29, opp. ed. Duteus, iv. 191. His words are: "Ex his aliisque 
 omnibus [the extant documents of all known systems of law] undeeunque 
 coUectia, Deo dante, conficiemus aliquando theatrum legale, et in omnibus 
 materiis omnium gentium, locorum, temporum placita irapaWrikia^ dispone- 
 mus." This is only one of about thirty works to be undertaken for the 
 improvement of legal studies. 
 
COMPARATIVE JURISPRUDENCE 19 
 
 anything more in the matter, as, indeed, the project 
 was too vast for any one man's lifetime. We must 
 pass on to the eighteenth century to find the great 
 precursor of modern historical and comparative 
 research — I mean Montesquieu. If we hesitate to 
 call him the founder, it is only because neither his 
 materials nor his methods of execution were adequate 
 to do justice to his ideas. He aimed (if I may repeat 
 my own words, first written many years ago) at 
 constructing a comparative theory of legislation and 
 institutions adapted to the political needs of different 
 forms of government, and a comparative theory of 
 politics and law based on wide observation of the 
 actual systems of different lands and ages. Hobbes 
 was before him in realising that history is not a series 
 of accidents, but Montesquieu was the first of the 
 moderns to proclaim that a nation's institutions are 
 part of its history, and must be considered as such 
 if we are to understand them rightly. Much of his 
 history is sound, and many of his judgements are 
 admirable. Yet he failed to construct a durable 
 system, and L'Esprit des lois cannot even be called 
 a systematic book. The materials were still too 
 scattered and uncertain to be safely handled on 
 Montesquieu's grand scale. Perhaps he would have 
 done better to confine himself to Western Europe. 
 The main defects of his method may be reduced, I 
 think, to two. First, he overrated the influence of 
 climate and other external conditions, and under- 
 rated, if he did not wholly neglect, the effects of race 
 and tradition. Next, he had not even an inkling 
 
20 ESSAYS IN THE LAW 
 
 of what is now a fundamental rule of tMs kind of 
 enquiry : namely, that there is a normal course of 
 development for communities as well as for individuals, 
 and that institutions which belong to difEerent stages 
 are not commensurable terms in any scientific com- 
 parison. This is as much as to say that even 
 Montesquieu could not wholly escape from the un- 
 historical dogmatism of his time. It is perhaps a 
 minor drawback that he constantly seeks for reasons 
 of deliberate policy to accoimt for seemingly eccentric 
 features of outlandish customs, rightly or wrongly 
 reported by missionaries or others, instead of 
 endeavouring to connect them with their historic 
 and racial surroundings. But the result is that 
 many chapters of his great work amount, taken by 
 themselves, to httle more than collections of anec- 
 dotes and conjectures in which the most incongruous 
 elements, such as the customs of China and the laws 
 of Spain, are brought together at random.^ Also 
 Montesquieu is not free from the very common error, 
 especially prevalent in the eighteenth century, of at- 
 tributing a constant and infallible efl&cacy to forms of 
 government. In short, Montesquieu saw the promised 
 land afar off, but was not equipped for entering it. I 
 do not wish to be imderstood as affecting to find any 
 fault with him. The greatness of Montesquieu's con- 
 ception was his own, and the shortcomings in execu- 
 tion were at the time necessary, or at least natural. 
 
 1 As Amari well says (Critica di una scienza delle legislazioni comparate, 
 p. 218) : " Lo spirito troppo vivace nuooe sovente al vero, le osservazioni 
 sono piii speaso argute e speoiose anziohe es^tte ; vuole porre un prinoipio 
 e sorive un epigramma," 
 
I COMPARATIVE JURISPRUDENCE 21 
 
 A great Italian thinker, Vico, wrote some twenty 
 years earlier than Montesquieu.^ It was both his 
 misfortune and that of Europe that for a long time 
 his reputation and influence were all but confined 
 to Italy. Montesquieu, as he did not lack enemies, 
 was accused of having made acquaintance with Vico's 
 work before publication and used it without acknow- 
 ledgement ; but this seems to be mere fiction. ^ Vico 
 must certainly be named among the precursors of 
 historical method on a large scale. It is possible 
 that he may yet indirectly recover his due share in 
 European speculation through the labours of the 
 school of Italian publicists who have been doing 
 remarkable work of late years. With historical and 
 comparative research, as we understand them for 
 the present purpose, his connexion is less close than 
 Montesquieu's ; though, like Montesquieu, he was led 
 to political science by the study of law. Vico's aim 
 was at nothing less than a universal philosophy of 
 politics and history ; the elucidation of particular 
 problems in jurisprudence or economics by historical 
 study was only incidental, and the use of comparative 
 examples was not as an instrument of discovery but 
 for the illustration of general truths already deduced 
 on metaphysical rather than historical principles.^ 
 I confess that my acquaintance with Vico's work is 
 
 ^ The first edition of the Scienza Nuova was published in 1725, the second 
 in 1730 ; L' Esprit des lois, at first anonymously, in 1748. 
 
 2 R. Flint, Vico, Lond., 1884, p. 164. 
 
 * His Latin treatise, De uno universi iuris principio et fine uno, is purely 
 dogmatic in form, though it deals with historical problems and contains 
 many brilliant historical conjectures, anticipating, e.g., Maine's doctrine as 
 to legal fictions. 
 
22 ESSAYS IN THE LAW 
 
 •slight ; but such is my impression. Perhaps we 
 may say that he was the pioneer in speculation, as 
 Montesquieu in observation, of our modern scientific 
 historians. In the faith that historical changes are 
 not casual, but follow an order capable of rational 
 determination when the conditions are given, these 
 two men stood together far in advance of their 
 generation. 
 
 At first sight it is little to the credit of Montes- 
 quieu's and Vico's contemporaries that their work 
 was not followed up.^ But the temper then preva- 
 lent among leaders of European thought was not 
 propitious. The men of the French Encyclopaedia 
 
 ^ Vico had a remarkable successor in the nineteenth century, whose work 
 was published at an unpropitious time, and seems, unfortunately, to have 
 remained unknown outside Italy. I am indebted to learned Italian col- 
 leagues for calling my attention, at the Historical Congress at Rome, to 
 Emerico Amari's Critica di wiia scienza delle legislazioni comparate (GenoTa, 
 1857: in Brit. Mus. library ; an intended sequel dealing more fully with the 
 historical part of the subject seems not to have been published. The only 
 printed information I have been able to find about the author in England is 
 in Vapereau's Dictionnaire des contemporains). Amari insists from the first 
 on the importance of combining historical with comparative study, and the 
 insufficiency of any one system alone to provide materi als for a philosophy 
 of law or theory of legislation. He gives due weight to the imitation of 
 foreign models as a factor in legal history, and incidentally deprecates the 
 unthinking adoption by Italian states of the French codes with all their 
 faults. He points out that comparative jurisprudence is not merely statistic 
 or dogmatic, but leads to a real " biology of law," and he dwells on the 
 analogy of comparative philology. He was well acquainted with the 
 German historical school, and with the projects of law reformers in the 
 principal countries of Europe ; and, writing in the darkest days of Italy 
 and in exile from his own land of Sicily, he never lost hope. One is glad 
 to know that he lived to see better things ; he returned to his native city 
 of Palermo and died there in 1870, on September 20, the very day when 
 the Italian troops entered Eome. The only lacuna to be observed in his 
 book, from our present point of view, is that nothing is said about the special 
 study of archaic legal ideas and their survival or transformation in modem 
 law and practice. There is much acute criticism in detail ; Amari rightly 
 sees, for example, that Bentham's system is essentially dogmatic. I have 
 quoted one of his remarks on Montesquieu above. 
 
COMPARATIVE JURISPRUDENCE 23 
 
 were protesting against tlie dogmatic traditions' 
 of the Middle Ages, but their criticism was itself 
 hardly less dogmatic. They proceeded on a gener- 
 alised view of human nature which excluded 
 allowances and qualifications, and they were as 
 impatient as any orthodox doctor of taking lessons 
 from history except such as they were a priori 
 prepared to accept. Rationalist ethics and politics, 
 as they had grown up in the eighteenth century, 
 culminated in the doctrine of the English utilitarians, 
 perhaps the most dogmatic of all systems of natural 
 law in spite of its professed appeal to experience. 
 Not that I am minded to disparage the services of 
 that school. Every mode of thought has its appointed 
 time, and the work of the Reform Bill period in 
 England could not have been accomplished by 
 historical criticism. As to legal science in particular, 
 its principal task in the eighteenth century was the 
 establishment of the law of nations on the foundations 
 laid by Grotius. Now the method of the publicists 
 who followed Grotius was essentially rationalising, 
 and their aim was uniformity. Study of diversities 
 occurring in actual history was exactly what they 
 wanted to avoid. Vico himself put aside apparent 
 exceptions to the universality of natural law with a 
 certain impatience.^ The newly constructed law of 
 nations, an avowed offshoot of the old law of nature, 
 had to impose itself on the governments of Europe, 
 
 1 Vel perturbationea auimorum, vel barbararum gentium absurdi mores 
 nihil quicquam ius naturae demutant, quod aeterna demonstravimus oonstare 
 ratione. — De uno univ. iuris princ. § xlviii. This is pretty remote from the 
 modem comparative method. 
 
24 ESSAYS IN THE LAW 
 
 not only by intrinsic merit, but by tlie weight of 
 uniform authority ; the formulated reason of man- 
 kind was to command obedience where the Pope 
 and the Emperor had failed. If it could not say of 
 itself quod semper, it would assert the right to say 
 quod ubique, quod ah omnibus. Any tenderness for 
 local variation, any too curious investigation of 
 historical progress, would have been fatal to its 
 cosmopolitan supremacy. It is true that Grotius 
 collected and used a great number of examples 
 from many authors of many times and countries. 
 But his method in using them was not what we now 
 call historical. They were to illustrate propositions 
 demonstrable by pure reason. Erom that quarter, 
 therefore, no encouragement would come to com- 
 parative studies, in the modern sense, of either 
 politics or law. Moreover, and more generally, 
 people who live under antiquated institutions, and 
 are constantly hampered by them, if not worse, are 
 not likely to consider their origins and historical 
 affinities with such impartial curiosity as modern 
 science, political as well as natural, demands of its 
 followers. It was hardly Voltaire's business to take 
 a scholarly interest in the development of canonical 
 procedure. 
 
 Then came the great clearing storm of the French 
 Revolution, and when Europe was at peace again, 
 the works of peace were resumed by a new generation. 
 It became possible to consider with sane judgement 
 and due respect the past that was frankly past, and 
 to treat history as a science. Modern criticism was 
 
COMPARATIVE JURISPRUDENCE 25 
 
 started, anew, or taken up where the precursors had 
 left it. Yet another generation, and the results of 
 the historical method were revealed to the educated 
 public, as I said above, with a kind of explosion. 
 Comparative jurisprudence, however, being versed 
 in profane and to some extent prehistoric matter, 
 did not pass through the stage of being denounced 
 as perilous to religion. It suffered nothing more 
 nearly approaching persecution than a somewhat 
 cold and unintelligent reception from the champions 
 of old-fashioned philosophies of law, and in England, 
 in particular, the surviving high priests of a moribund 
 utilitarian orthodoxy. • The complete recognition of 
 the new branch of legal science may best be dated 
 from the year 1869. In that same year the Society 
 of Comparative Legislation was founded in Paris,^ 
 and Sir Henry Maine was appointed the first Professor 
 of Historical and Comparative Jurisprudence at 
 Oxford. It is proper to record that the foundation 
 of this chair by the munificence of Corpus Christi 
 College was due in the first instance to Wilson, then 
 President of the College, and Sir Kenelm Digby, 
 then a Fellow. Certainly the use of the word " legis- 
 lation " by the parent French Society, followed 
 apparently for conformity's sake when the English 
 Society of the like name was established so recently 
 as 1896, argues a rather inadequate conception ahke 
 of the problems and of the method ; but the work of 
 
 1 There was a chair of comparative law at the College de France as early 
 as 1830, and another, limited to criminal law, at the Sorbonne ; but Littre, 
 writing his great dictionary of the French language about a generation later, 
 made no mention of any such term as droit compare. 
 
26 ESSAYS IN THE LAW 
 
 both societies has disregarded these verbal bonds. 
 It is impossible to give in a short compass even the 
 most superficial account of the various applications 
 of comparative research, within the last twenty or 
 thirty years, both to jurisprudence proper and to 
 allied branches of political science. For an English 
 lawyer it is hardly too much to say that the methods 
 which Oxford invited Maine to demonstrate in this 
 chair have revolutionised our legal history and largely 
 transformed our current text-books. If you desire 
 to know what is being done by the historical and 
 comparative method in the world of learning at large, 
 you must enquire not of one man, but of many. I 
 name only some scholars whom I have the privilege 
 of knowing personally. You must ask of Esmein 
 and Paul Viollet in Paris, of Brunner and Gierke in 
 Berlin, of Balzani and Boni at Eome, of Kovalevsky 
 and Vinogradofi — ^not in Moscow, for reasons not to 
 be mentioned here — of Holmes at Washington and 
 Ames at Harvard, of Alfred Lyall in London and 
 Maitland at Cambridge. There is one word of sorrow 
 to add for mighty men who have passed away from 
 us. Lord Acton and Thayer are no longer captains 
 in our host. 
 
 We still have to consider why the University is 
 specially bound to welcome this transformation, to 
 be proud of her own share in it, and to render per- 
 petual thanks to the great scholar and publicist who 
 showed us the way to it in this country and place. 
 It is a good thing that lawyers should be better 
 instructed in legal antiquities, and that students, 
 
COMPAEATIVE JURISPRUDENCE 27 
 
 whether they aim at being historians or not, should 
 be delivered from having fictions repeated to them as 
 history. That is matter, so far as it goes, for reason- 
 able satisfaction, but does not seem to have much 
 to do with scholarship and humane letters in general. 
 Surely there is something beyond this, and not the 
 less because additions to positive knowledge are 
 definable, but the spirit of an intellectual movement 
 is not definable. Historical method has indeed given 
 us more than knowledge ; it has made our knowledge 
 continuous where it was formerly dispersed ; it has 
 set an ideal in the place of a bare multitude of 
 facts. 
 
 Maine taught us to find our profit ia the ancient 
 treasure of Eastern custom. Let us go to the sym- 
 bolic aphorisms of the East to learn the final secret 
 of Maine's wisdom. Muhammad Shamsu'-d-din Hafiz 
 of Shiraz wrote in one of his odes : — 
 
 My heart is vexed b^ the solitude of Alexander's prison ; 
 
 I will truss up my baggage and get me to the kingdom of Solomon. 
 
 (Dil-am az wahshat-i-zinddn-i-Sikandar bi-girift : 
 Ralchl har-handam u td mulk-i-Suleimdn bi-ravam.) 
 
 This couplet signifies, as the commentators tell us, 
 that Hafiz was weary of staying in Isfahan and eager 
 to return to his beloved city of Shiraz. But Eastern 
 poetry is full of double meanings, and it is not hard 
 to discern here a more general spiritual meaning 
 apart from the literal occasion. Alexander is the 
 lord of this world, a conqueror of kingdoms with 
 the sword of the flesh, a bestower of earthly riches ; 
 
28 ESSAYS IN THE LAW 
 
 and Alexander's prison is tlie illusion wherein those 
 men dwell whose desire is to worldly rewards and 
 honours and all manner of transitory goods, and who 
 deem such things to be of any worth for their own 
 sake. But Solomon is the lord of wisdom and ruler 
 of spirits, having the seal engraven with the Ineffable 
 Name, by whose virtue he can summon angels and 
 control demons ; and Solomon's kingdom is the world 
 of things eternal, wherein, whatsoever is true and good 
 and beautiful is worshipped for itself, and not for 
 any temporal profit that it may bring ; and Solomon's 
 men are those who endeavour themselves to pursue 
 that worship, holding the things of this world neither 
 in overmuch honour nor in contempt, but as instru- 
 ments to be used for higher ends. And the token 
 of a man's allegiance to Solomon is that he knows 
 it is better to be a doorkeeper in the temple than 
 warder of all the prison. Now the prison of Alexander 
 is paved with useful facts. But the pillars of 
 Solomon's temple are ideas, and its headstones are 
 the imaginations of genius which the men of practical 
 sense despised, and the dome is built of the unity of 
 all knowledge. And in the centre of the dome a 
 jewel is set, flashiag light perpetually throughout the 
 temple ; and the divers colours of its rays are the 
 wisdom of the wise, but its whiteness is the infinite 
 wisdom of God. And round about the dome is 
 written the saying of the Lord when David asked 
 him. Lord, since thou wast perfect, what need hadst 
 thou to create the world ? and the Lord made answer, 
 I was a hidden treasure and I would be revealed. 
 
I COMPAEATIVE JURISPRUDENCE 29 
 
 Whoever brings a fruitful idea to any branch, of 
 knowledge, or rends the veil that seems to sever one 
 portion from another, his name is written in the 
 book among the builders of the temple. Therefore, 
 here in the Faculty of Law, we give thanks because 
 our master Maine brought us into new and closer 
 fellowship with our brethren of History and of Arts, 
 and taught us to understand what it is that we 
 inherit, and what has been the part of the law and 
 of its ideas in the life of our nation. 
 
 The work of the present generation in the field of 
 comparative jurisprudence is mostly work of detail. 
 Our great predecessors have annexed realms which it 
 is for us to settle and administer. But there is no 
 rest for knowledge, and for our children, if not for 
 us, there will again be a time of large adventure. 
 They will go forth to new conquests, perhaps armed 
 with the weapons we have forged for them, per- 
 haps with others of such fashion and power as we 
 cannot even guess. 
 
 Alter erit turn Tiphys et altera quae vehat Argo 
 Dilectos heroas — 
 
 we may finish the line and say " erunt etiam altera 
 bella," for our successors will doubtless have their 
 controversies too. But the contest will be bloodless 
 and harmless, and the victory will be to truth ; 
 neither will our sons forget in their triumphs that we 
 wrought, as best we might, to prepare the way for 
 them. The quest will be ever new and the perils 
 ever changing ; but the goal will be the same, the 
 
30 ESSAYS IN THE LAW 
 
 temple which, is not of the money-changers, but of 
 Solomon in his spiritual glory. For it is also written 
 by one of our own prophets, To labour in knowledge 
 is to build up Jerusalem, and to despise knowledge is 
 to despise Jerusalem and her builders. 
 
II 
 
 THE HISTOEY OF THE LAW OF NATURE ^ 
 
 I 
 
 The term " Law of Nature," or natural law, has been 
 in use in various applications ever since the time of 
 the later Roman Republic. / Their variety and ap- 
 parent diversity have tended to obscure the central 
 idea which underlies them all, that of an ultimate 
 principle of fitness with regard to the nature of man 
 as a rational and social being, which is, or ought to 
 be, the justification of every form of positive law. 
 Such a principle, under the name of reason, reason- 
 ableness, or sometimes natural justice, is fully recog- 
 nised in our own system, but the difEerence of 
 terminology has tended to conceal the real similarity 
 from English lawyers during the last century or 
 more. The neglect of mediseval learning which 
 followed the Renaissance and the Reformation has 
 also caused us to forget that the Law of Nature has 
 a perfectly continuous history down to the date of 
 its greatest and most beneficent achievement — one 
 might almost say its apotheosis — in the foundation 
 of the modern Law of Nations by Grotius. Much 
 
 1 Journal oj the Society of Comparative Legislation, 1900, p. 418, 
 
 31 
 
32 ESSAYS IN THE LAW ^ 
 
 that has been written on tMs subject, even by 
 eminent authors, assumes or suggests that Grotius 
 revived for his own purposes an almost dormant 
 conception of the Roman lawyers. In fact, the Law 
 of Nature, as Grrotius found it, was no mere speculative 
 survival or rhetorical ornament. It was a quite 
 living doctrine, with a definite and highly important 
 place in the mediaeval theory of society. What is 
 more, it never ceased to be essentially rationalist 
 and progressive. Modern aberrations have led to a 
 widespread belief that the Law of Nature is only a 
 cloak for arbitrary dogmas or fancies. The element 
 of truth in this belief is that, when the authority of 
 natural law was universally allowed, every disputant 
 strove to make out that it was on his side. But such 
 an endeavour would obviously have been idle if the 
 Law of Nature had meant nothing but individual 
 opinions. I now propose to give a summary view 
 of the origin and development of the doctrine. The 
 facts are not open to doubt, and any current errors 
 are due to pure oversight rather than to mis- 
 construction. 
 
 Natural law, as conceived by mediaeval scholars, 
 was derived partly from the Aristotelian distinction 
 of natural and conventional justice, partly from the 
 Latin exposition, led by Cicero, of the same idea in 
 its later Greek forms, and partly from the still later 
 special adaptation of it by the classical Roman 
 jurists. The distinction was not altogether new in 
 Aristotle's time ; for the present purpose, however, 
 the celebrated passage in the fifth book of the 
 
n HISTORY OF THE LAW OF NATURE 33 
 
 NicomachearL Ethics ^ — ^not from Aristotle's own hand, 
 but certainly Aristotelian in substance — may be taken 
 as the fountaia-head. • Justice, as a necessary element 
 of the State {to ■jtoXitikov BUaiov), is divided into 
 natural (to f^ev i^vaiKov, naturale) and conventional 
 (to Se vofiiKov, legale). Rules of natural justice are 
 those which are universally recognised among civilised 
 men. Rules of conventional justice deal with matters 
 which are indifferent or indeterminate until a definite 
 rule is laid down by some specific authority. Such 
 are all rules fixing the amount of fines or other money 
 payments. ■ The rule of the road may furnish as good 
 a modern example as any. Reason suffices to tell us 
 that some rule is desirable on frequented roads, but 
 whether we shall take the right or the left hand can 
 be settled only by custom or legislation ; and in fact 
 the rule differs in different countries. Thus far 
 Aristotle might seem to be merely noting the fact 
 that some principles of social conduct are admitted 
 everywhere, or at least wherever there is any settled 
 government. But the Aristotelian use of the term 
 " Nature " goes beyond this ; it implies the concep- 
 tion of a rational design in the xmiverse, which is 
 manifested though never perfectly realised in the 
 material world. This last qualification is important. 
 Aristotle expressly guards himself against asserting 
 that the rules of natural justice, as actually found in 
 human society, are perfectly constant. General uni- 
 formity is enough to show that they exist, as the 
 
 1 C. 7. This is one of the Eudemian books. The Latin equivalents 
 given are those used by St. Thomas Aquinas, from the literal version pre- 
 pared under his direction. 
 
 D 
 
34 ESSAYS IN THE LAW 
 
 right hand is truly said to be the stronger, although 
 there are left-handed people. 
 
 The Stoics emphasised the teleological and ethical 
 aspects of the Peripatetic doctrine, and fixed on the 
 term " Nature " in this connexion the special mean- 
 ing of the constitution of man as a rational and 
 social being. Every creature has its own nature and 
 its own appropriate functions, and for man — whose 
 nature is to be a citizen — the Law of Nature is the 
 sum of the principles, founded in human nature, 
 which determine the conduct befitting him in his 
 rational and social quality. No term answering to 
 the Latin ius gentium is known to occur in Greek 
 philosophy, but the later Stoics at any rate spoke 
 of vofxo^ jivaiKo^ (which Aristotelian usage would 
 not allow), and the original Aristotelian dictum was 
 current in the Middle Ages in the form " Ius naturale 
 est quod apud omnes homines eandem habet 
 potentiam." ^ 
 
 As to Roman usage, it appears that ius gentium 
 was old popular as well as legal Latin, and meant 
 the common law or usage of mankind — ^the rules 
 which, in fact, everybody recognises.^ This is very 
 near the ^vaiKov SUatov of the Greeks, taken on 
 the practical and directly observable side. Lex 
 naturalis or naturae, ius naturale, came in, as deliberate 
 translations of the Greek term, in the last period of 
 the Eepublic. They must have been neologisms, 
 in Cicero's time, for in his earhest work, the 
 
 ^ Fortesoue, De Lavdibus Legum Angliae, c. 16. 
 ^ Ncttleship, Contributions to Latin Lexicography, s.v. 
 
n HISTOEY OF THE LAW OF NATURE 35 
 
 De inventione, as in that of the anonymous Auctor ad 
 Herenniwm whom he follows, the idea is found, but is 
 expressed by periphrasis. The law derived from 
 Nature, as there set forth, is identical, as might be 
 expected, with the morality of a high-minded Roman 
 gentleman.^ We are not concerned here with the 
 technical history of ius gentium as part of the Roman 
 system of law, but only with the reason given for 
 its adoption. Obviously no positive authority could 
 be assigned ; and ancient Roman lawyers were no 
 more willing than modern English ones to admit 
 frankly that they were innovating on grounds of 
 convenience. The Greek doctrine of the Law of 
 Nature furnished exactly the ideal foundation which 
 was wanted, and the classical jurists, perhaps with 
 more aid from lost Greek philosophical works than 
 we can now trace, proceeded to identify ius gentium 
 with ius naturale for the purposes of legal science. 
 
 Strictly speaking, ius naturale should signify the 
 rules of conduct deducible by reason from the general 
 conditions of human society, ius gentium so much of 
 those rules as is actually received and acted upon 
 among all civilised people. We have already seen 
 that not even philosophers expected natural justice 
 to be compleitely realised in this world, nor can I 
 find any evidence that either philosophers or lawyers 
 believed it ever had been, notwithstanding the modern 
 use of such expressions as " the lost code of Nature " 
 with reference to the Roman doctrine. If they ever 
 
 1 De invent, ii. 53, s. 161 : " Natura ius est quod nou opinio genuit sed 
 quaedam innata vis inseruit : ut religionem, pietatem, gratiam, -rindioa- 
 tionem, observautiam, veritatem." 
 
36 ESSAYS IN THE LAW 
 
 felt tempted to connect the Law of Nature witli the 
 fables of a golden age, they were wise enough to resist 
 the temptation. 
 
 Thus a distinction between ius naturale, the ideal 
 to which actual law and custom could only approxi- 
 mate, and ius gentium, the measure of the practical 
 approximation at a given time, was quite warrantable, 
 if not positively required from a theoretical point of 
 view. Such a distinction, however, is but seldom 
 made by the Roman lawyers, and then in exceptional 
 matter, such as the question of slavery ; ^ and modern 
 Romanists appear still unable to agree whether pass- 
 ages of this kind represent a received doctrine or 
 individual speculations. There is no doubt that the 
 terms were treated as synonymous in ordinary cases, 
 and it is not difficult to suppose that in such cases 
 the exceptional ones were not present to the minds of 
 the writers, or the tacit exception of them was left 
 to the reader's intelligence. 
 
 The compilers of Justinian's Institutes adopted 
 from Ulpian a phrase extending the Law of Nature 
 to all living creatures : " Ius naturale est quod 
 natura omnia animalia docuit." ^ This would seem 
 to be merely a piece of over-ambitious generalisation 
 taken from some forgotten Greek writer, perhaps a 
 rhetorician and not a philosopher. It is quite con- 
 
 1 The contrast is most strongly put in a fragment of Tryphoninus, D. 
 12. 6. De Condict. Indeb. 64 : " Libertas natural! iure eontiuetur, et domi- 
 natio ex gentium iure introducta est." It hardly needs pointing out that 
 this is not an Aristotelian view. St. Thomas Aquinas tries to reconcile the 
 earlier and later philosophers by a distinction of great ingenuity : Sec. 
 Secundae, qu. Ivii. art. 3. 
 
 2 D. 1. 1. De lust, et lure, 1, 3, 
 
n HISTORY OF THE LAW OF NATURE 37 
 
 trary to the Stoic conception of the Law of Nature, 
 where Nature undoubtedly means the reason of the 
 universe as exhibited in the specific moral and social 
 character of man, and " following Nature " means 
 realising, so far as possible, the ideal of human 
 nature ; so that the difference between man and 
 other animals is more important than the resemblances. 
 Ulpian's unlucky phrase is alone in the Corpus luris ; 
 Ulpian himself makes nothing of it beyond saying 
 that rudimentary family institutions may be ascribed 
 to irrational animals, and there is no sign of the 
 notion having had any influence in Roman law. 
 Nevertheless, this passage, having been put in a 
 conspicuous place at the opening of Justinian's 
 Institutes, and therefore speaking with the highest 
 authority, has given infinite trouble to commentators. 
 Most mediaeval writers felt bound to accept — with 
 more or less qualification, according to their boldness 
 and ingenuity ^ — the threefold classification of ius 
 naturale, the rules or instincts common to all animals ; 
 ius gentium, the rules common to all mankind ; and 
 ius civile, the particular law of this or that 
 commonwealth. 
 
 William of Ockham, one of the boldest, propounded 
 a classification altogether independent of Ulpian. 
 Ius naturale, he says, may be taken in three senses : 
 (1) The universal rules of conduct dictated by natural 
 reason ; (2) rules which would be accepted as reason- 
 
 1 There is some good criticism in Aegid. Rom., De regimine pr. III. ii. 
 c. 25. (This book is often cited without the author's name ; care is there- 
 fore necessary to distinguish it from the other work, partly by St. Thomas 
 Aquinas, of like title.) 
 
38 ESSAYS IN THE LAW 
 
 able, and therefore binding, in a society governed (or 
 in any society so far as governed) by natural equity 
 without any positive law or custom of buman ordin- 
 ance ; (3) rules wbicb may be justified by deduction 
 or analogy from the general precepts of the Law of 
 Nature, but, not being in fundamentals, are liable to 
 modification by positive autbority.^ Tbe " second- 
 ary Law of Nature " of later books appears to 
 cover William of Ockbam's second and third heads, 
 but may generally be referred to the third. That 
 which modern writers since Rousseau have commonly 
 called the Law of Nature without qualification is 
 nothing else than a one-sided development of the 
 " secondary Law of Nature " as it was understood 
 before the scholastic terminology was forgotten. 
 But we must return to the normal process of mediaeval 
 thought on the main lines of the subject. 
 
 About the beginning of the twelfth century the 
 revival of Latin learning, which is not unjustly 
 called the " Lesser Renaissance," was fully as active 
 in legal and political speculation as in other directions. 
 The more exciting and more easily intelKgible con- 
 troversies of the sixteenth century have obscured 
 the importance of this movement for latter-day 
 readers. John of Salisbury may be taken as its 
 typical English champion. It culminated, a century 
 and a half later, in Dante. When we call it a revival 
 
 1 Dial, pars III. tr. ii. 1. 3, u. 6, at p. 932, ia Goldast, Monarchia, torn. ii. 
 There is an express claim of originality ; the Student says : " Istam distinc- 
 tionem iuris naturalis alias non audivi." Apparently William of Ockham's 
 dialogue has never been critically edited ; it is still practically accessible only 
 in Goldast' s enormous volumes. 
 
« HISTORY OF THE LAW OF NATURE 39 
 
 of Latin learning, we include not only the study of 
 Roman literature and the Roman law, but the study 
 of Greek antiquity and philosophy so far as accessible 
 through Latin. Indeed, there is reason to think 
 that knowledge of Greek, in the thirteenth century 
 at any rate, was not so very rare as has been com- 
 monly supposed. We have to remember that, for 
 the mediaeval history of the Law of Nature, Aristotle 
 is not less important than Justinian, and Cicero's 
 authority does not come far behind.^ The heathen 
 philosophers had been so much quoted and approved 
 by Fathers of the Church that they stood in the eyes 
 of mediaeval scholars on almost as high a level of 
 sanctity as an orthodox emperor. AVhen the age of 
 chaos was past, and the lawyer and the statesman, 
 after many generations, once more had the means 
 of being humanists, the Law of Nature presented 
 itself with twofold and threefold claims to allegiance. 
 Its authors and vouchers carried a weight second 
 only to that of the law of God as declared by the 
 authority of the Church. Evidently the Law of 
 Nature could not be left out in any systematic 
 discussion of human conduct. Any serious attempt 
 to disparage it was no less out of the question. Even 
 
 ^ See the Ciceronian passages collected in K. Hildenbrand, OescliicMe u. 
 System der BecMs- u. Staatsphilosophie, i. 564. (This volume seems to be 
 all published.) The fragment of the De repiMica preserved by Lactantius 
 probably had more influence than any one passage in the jurists. As it is 
 constantly referred to, it may be convenient to give the leading phrases 
 here : — " Huio legi nee abrogari fas est, neque derogari ex hac aliquid licet, 
 neque tota abrogari potest : nee vero aut per senatum aut per populum 
 solvi hac lege possumus ; neque est quaerendus explanator aut interpres eius 
 alius : nee erit alia lex Romae, alia Athenis, alia nunc, alia posthac," etc. 
 (De rep. III. 22). The use of the word " lex " involves the idea of rational 
 design, and is justified by it, otherwise it would not be Latin. 
 
40 ESSAYS IN THE LAW 
 
 the Church could not afford to set herself against 
 Aristotle, Cicero, and Justinian. The Law of Nature 
 was too firmly in possession to be evicted. Yet the 
 Church had to maintain her supremacy, as custodian 
 of the divine law, in matters of faith and morals. 
 
 Only one way was possible. The Eomans had 
 already identified their ius gentium with the Law of 
 Nature ; the process must be carried a step farther 
 by identifying the Law of Nature with the law of 
 God. Philosophers had already used language which 
 pointed that way. The step was taken, in the 
 twelfth century, by the author or authors of the 
 Decretum of Gratian, and with a thoroughgoing 
 boldness which almost deserves the name of genius.^ 
 At the very head of the Decretum, therefore at the 
 very head of the body of Canon Law as since collected, 
 we read that the Law of Nature is nothing else than 
 the golden rule, comprised in the Law and the Gospel, 
 which bids us do as we would be done by, and forbids 
 the contrary. It is supreme over all kinds of law by 
 antiquity and dignity ; it is immutable ; it prevails 
 over both custom and express ordinance. Here, it 
 would seem, English lawyers must be content to 
 find the origin both of the maxim, still received, that 
 a custom cannot be good if it is contrary to reason, 
 
 "■ I have looked into the best - known manuals of Canon Law before 
 Gratian (Regino of Priim, Burchard of Worms, Ivo of Chartres) with the aid 
 of the excellent indices to them in Migne's Patrologia, rather expecting to 
 find the doctrine in an earlier stage, but have found nothing like it. Ap- 
 parently Gratian makes a wholly new departure. There is reason to believe 
 that the Decretum was strongly influenced by Abelard (see Thaner, Abdlard 
 und das cmwnische BecAt, Graz, 1900) ; but whether there be anything to 
 our immediate purpose in Abelard I must for the present leave to be verified 
 by better medisevalists than myself. 
 
11 HISTORY OF THE LAW OF NATURE 41 
 
 and of the doctrine — now rejected, but current 
 (though never put in any efiectual practice) in the 
 sixteenth and down to the eighteenth century — 
 that a statute may be held void for being repugnant 
 to reason or " common right." The Law of Nature, 
 however, is not absolutely co-extensive with the law 
 of the Church or with the rules revealed in Scripture. 
 For even revealed precepts, though of unquestion- 
 able authority, may and often do deal with matters 
 not fundamental in themselves, but appertaining to 
 ceremonial and positive regulation. It is assumed, 
 rather than directly laid down, that the Church is the 
 authentic exponent and interpreter of natural law. 
 The assumption, however, is obviously required by 
 reasons of discipline. It would never do for bishops 
 and archbishops to claim practical independence 
 under pretence of following the rule of natural reason 
 at their own discretion. But the Law of Nature in 
 the hands of an ultimate authority may be an 
 effective solvent in many cases. A bishop who 
 obstinately relies on a local custom against the 
 general usage of the Church will find himself kicking 
 against the pricks, not merely of official superiority, 
 but of a law which he must needs recognise as para- 
 mount.^ Truth before custom : had not Augustine 
 said it ? Thus the Law of Nature, as the eldest 
 branch of the divine law, goes hand in hand with the 
 no less divine authority of the Church to judge all 
 the earth and do right. Such is, in outline, the 
 
 1 If any one should think the reinforcement superfluous, le him remember 
 that the discipline of the Church in the middle of the twelfth century was 
 not what it is now, or what it had become even a century or two later. 
 
42 ESSAYS IN THE LAW " 
 
 system which has never been substantially departed 
 from by orthodox canonists. It is true that the 
 Decretum of Gratian has not, in Canon Law, the 
 same binding force as the later Decretals.^ But if 
 authority were wanting to Gratian's enthronement 
 of the Law of Nature, it was amply supplied by 
 Aquinas, who set his stamp on the doctrine ia the 
 next century. 
 
 The relation of natural law to divine law ia general 
 is more fully defiaed by St. Thomas ; they are not 
 substantially different, but natural law is divine law 
 so far as revealed through the medium of natural 
 reason, " participatio legis aeternae in rational! crea- 
 tura." ^ This identification was carried over by the 
 glossators into the teaching of Civil as well as Canon 
 Law. Thus Azo explains Ulpian's natura, in the 
 perplexing dictum already mentioned, by id est ipse 
 Deus.^ It is needless to dwell farther here on the 
 passages of St. Thomas Aquinas touching the Law 
 of Nature, as they have been cited by recent English 
 writers (Professor Holland and others) and are 
 comparatively well known. Mediaeval writers often 
 speak for brevity's sake of divine law, without 
 qualification, when they mean specifically revealed 
 rules of conduct, and of positive law when they 
 mean positive or conventional rules of human ordin- 
 ance. Hence a current division of all law into 
 divine, natural, and positive, where the first and 
 last of these epithets must be understood to be used 
 
 1 See F. W. Maitland in 2 Encyd. Eng. Law, 356, 357. 
 
 " Prima Secundae, qu. xci., art. 2. 
 
 » See r. W. Maitland, Bracton and, Azo (Seld. Soc, 1895), at pp. 32, 33. 
 
u HISTORY OF THE LAW OF NATURE 43 
 
 in the compendious manner just explained, and not 
 to imply ignorance or doubt of the propositions, 
 perfectly well known to the writers, that all natural 
 law is divine, and some divine law is positive.^ 
 
 The full adoption and glorification of natural law 
 by the Decretum of Gratian was, as above said, a 
 master-stroke of policy. We may doubt whether it 
 aimed so high as securing supremacy for the Church 
 over the temporal power, or making the Church the 
 arbiter in questions of secular government. Designs 
 of that magnitude were then hardly formed. The 
 Church was clearly bound to uphold the fundamentals 
 of Catholic faith and morality agaiast all earthly 
 powers ; we need not suppose that Gratian intended 
 to go farther. At all events there was no way of 
 making political speculation wholly subordinate to 
 theology. It was not long before ingenious controver- 
 sialists discovered that the supremacy of the Law of 
 Nature was a double-edged weapon. For the Law of 
 Nature, by its very definition, was a rule of life and 
 society discoverable by human reason apart from any 
 special revelation or the decision of any particular 
 authority. When discovered, again, it was admitted 
 to be absolutely binding. Natural law could not be 
 in conflict with divine law, for it was part of the 
 divine law. The intentions of Nature, as philosophy 
 calls them, are nothing else than the intentions of 
 
 ^ Seidell's brief remarks in his Table Talk, s.v. Law of Nature, seem to 
 ignore these distinctions. Denial of any natural law apart from a specially 
 sanctioned revelation appears to be the substance of the dictum as reported. 
 But this would make Selden more Hobbist than Hobbes himself, and we 
 cannot suppose that he would have expressed his considered opinion in 
 such terms. 
 
44 ESSAYS IN THE LAW 
 
 the Creator. As Dante puts it : ^ " Manifestum est 
 quod Deus fmem naturae vult." So William of 
 Ockham : " Onme autem ius naturale est a Deo qui 
 est conditor naturae." ^ Whatever, therefore, reason 
 can establish as part of natural law may be used as 
 a touchstone for propositions enoimced by any 
 particular person or body and purporting to be 
 deduced from the specially revealed part of Grod's 
 law. Such propositions, if contrary to natural law, 
 must be erroneous. Nor could theologians or official 
 persons of any kind claim a monopoly of natural 
 reason. Even if the Church were the ultimate 
 interpreter, the authentic voice of the Church could 
 be found only in a General Council ; for in the 
 Middle Ages the infallibility of the pope, so far from 
 being a dogma, was barely allowed to be a plausible 
 opinion. Thus a wide field of speculation was kept 
 open, and guarded by the Law of Nature, through 
 the action of the Church herself. Not even a William 
 of Ockham could think of going behind the notorious 
 elements of orthodox belief ; and indeed the Law of 
 Nature could obviously have little application, if 
 any, to purely theological argument. But, apart from 
 the fact that some dogmas, or opinions which have 
 since become dogmas, were still plastic, there was 
 much to be done without any such extreme adven- 
 ture. There were a great number of questions 
 interesting to both Church and State, such as we 
 now call constitutional, which remained legitimately 
 
 ^ De monarch. 3, 2. 
 * Dial. III., ii. 3, u. 6, at p. 934, in Goldast, Monarch, t. ii. 
 
n HISTORY OP THE LAW OF NATURE 45 
 
 open. One might not derogate from the law of God 
 as expressed in Scripture and laid down by the 
 Church. But in the case in hand the revealed law 
 of God might be wholly silent, or it might be am- 
 biguous, or authentic texts admitted or alleged to 
 be applicable might be capable of widely differing 
 interpretations. When once there were plausible 
 grounds on either side and no decisive authority, 
 the Law of Nature — like the king's ultimate power 
 of doing justice in default of an adequate ordinary 
 jurisdiction — could always be invoked by way of 
 supplement. It might furnish a rule where no rule 
 had been declared, or might guide interpretation where 
 the application of the rule was not certain. Moreover, 
 as we have pointed out, it was not free to a mediaeval 
 disputant to traverse the authority of the Law of 
 Nature itself, but only to deny the correctness of the 
 adversary's formulation or application of its rules in 
 the particular case. 
 
 A weapon of controversy so tempting and lying 
 so ready to hand could not fail to be freely and 
 eagerly wielded. In fact, we find the Law of Nature, 
 through the Middle Ages and down to the Renais- 
 sance, called in aid of many and various contentions, 
 sometimes on the side of the opinions most favoured 
 in high places, but as often on the contrary. Most 
 chiefly it was an iaexhaustible topic in the standing 
 controversy for dominion between the Empire and 
 the Papacy. Rival claims to supreme jurisdiction, 
 urged with abundance of plausible authority on behalf 
 of potentates who owned no common earthly superior, 
 
46 ESSAYS IN THE LAW 
 
 furnished exactly the field in which the Law of 
 Nature might be used with brilliant dialectic effect as 
 a deus ex machina. So the champions on either side 
 constantly endeavoured to turn the scale by demon- 
 strating to their own satisfaction that the Law 
 of Nature supported, as their case might be, the 
 pope or the emperor. Imperiahst arguments were 
 not wanting in boldness. William of Ockham 
 maintains that the people of Rome have prob- 
 ably a divine, certainly a natural, right to elect 
 their own bishop, and appeals with confidence 
 to natural reason to show that a heretical or 
 otherwise incorrigibly evil pope may lawfully be 
 deposed.^ 
 
 On all hands it was admitted, even by extreme 
 partisans, that both pope and emperor were subject 
 to the Law of Nature, though it might be and was 
 urged that one or the other of them was more likely 
 to form a correct judgement as to what its dictates 
 were. As the champions of the Curia suggested or 
 assumed that the official head of the Church was the 
 best exponent of natural law, so the Imperialists 
 maintained that it was the safe course to follow the 
 emperor's judgement in case of doubt, and rash to 
 dispute it unless it were so contrary to settled 
 principles as to be manifestly erroneous.^ English 
 lawyers accustomed to weighing the relative authority 
 of decisions will readily see how natural and indeed 
 inevitable these positions were in a controversy where 
 
 1 Goldast, Monarch, ii. 568, 934. 
 
 ^ " Error principis probabiliter ius facit " : William of Ockham, Goldast, 
 op. cit. at p. 924. 
 
II HISTORY OF THE LAW OF NATURE 47 
 
 jurisdiction was the principal or only matter really 
 in difference. 
 
 It was no less inevitable that the appeal to the 
 Law of Nature as the ultimate ground of decision 
 between the conflicting claims should often become 
 indistinguishable, to modern eyes, from a pretty 
 frank appeal to expediency. We find even the 
 language of modern utilitarianism anticipated, for 
 communis utilitas is a quite current term. If Bentham 
 had known what the Law of Nature was really like 
 in the Middle Ages, he would have had to speak of 
 it with more respect. It has been pointed out before 
 now that in any case utilitarianism is just as much a 
 system of natural law as any other dogmatic system 
 of ethics or politics. Indeed, the political principles 
 of the Imperialist doctors come very near to the 
 well-known theistic form of utilitarianism, according 
 to which utility is the test of right conduct because 
 God wills the happiness of his creatures. 
 
 The Law of Nature being for the most part an 
 engine of dialectic, we have no cause to be surprised 
 at not finding much mention of it by name in official 
 and authoritative documents. On occasion, however, 
 it might serve the purpose of a prince who wished 
 to assign imposing reasons for a bold reform without 
 derogating from his own supremacy. Thus Philip 
 the Fair of France in 1311 rested the enfranchisement 
 of the bondmen on the Valois domain upon freedom 
 being the natural birthright of man, and brought in 
 the common profit of the realm (following the utili- 
 tarian tendency noted above) as a secondary motive. 
 
48 ESSAYS IN THE LAW 
 
 " Comme creature liumaine qui est formee a I'image 
 Nostre Seigneur doie generalement estre franche par 
 droit naturel et en aucuns pays de cette naturelle 
 liberte ou franchise par le jou de servitute qui tant 
 est haineuse soit si effaciee et obscurcie . . . nous 
 meus de pitie pour le remede et salut de nostre ame et 
 pour consideration de humanite et de commun profit," 
 etc.^ The example was followed by Philip's son, 
 Louis le Hutin. A high authority has seen here a 
 misunderstanding or misapplication of the Roman 
 dictum, " Omnes homines natura aequales sunt." ^ 
 But in the first place it is not clear that there is any 
 reference to Roman secular law. The tone of this 
 preamble is more ecclesiastical than civil, and the 
 Church had always stood for freedom and favoured 
 manumission. Again, it was considered perfectly 
 fair throughout the Middle Ages to apply any text of 
 authority in any sense it could be made to bear, 
 without regard to what the original historical sense 
 might have been. The more authoritative the text, 
 the more applications were presumably to be dis- 
 covered in it ; and the most far-fetched use of a text 
 is no proof that the writer had misunderstood its 
 primary meaning. Besides, if Roman texts are in 
 question, there are express dicta in the Digest to the 
 effect that the Law of Nature does not recognise 
 slavery, and it would be enough to rely on these 
 without saying (as the ordinance does not say) 
 anything about equality. I do not know whether it 
 
 1 Ordonnances des Rois de France de la troisieme Race, xii. 387. Maine, 
 Ancient Law, 94, refers only to Louis le Hutin'a later ordinance. 
 
 2 Maine, I.e. 
 
" HISTOEY OF THE LAW OF NATURE 49 
 
 was open to a Frencli lawyer in the fourteenth century 
 to argue that a wholesale emancipation of this kind 
 was beyond the power of the Crown, or, though not 
 invalid, censurable on constitutional grounds. If any 
 such objection could be expected, nothing could be 
 more aptly framed to meet it than the king's appeal 
 to the Law of Nature as the paramount reason of 
 public policy. 
 
 In the sixteenth century the controversies incident 
 to the Reformation gave a singular impulse to specula- 
 tive political discussion. It would be difficult to name 
 any modern theory of sovereignty, of the State, or of 
 the origin of society, which is not anticipated some- 
 where in this mass of polemics ; ^ and in particular 
 the foundation of civil government was quite com- 
 monly referred to some kind of contract. The terms 
 of the contract, and still more its implied conditions, 
 varied according to the opinions of the disputant. 
 But this did not materially affect the importance of 
 natural law. For, since the original contract had in 
 general no historical existence (however the ingenuity 
 of dialectic might strive to disguise this), its terms 
 could not be proved as a matter of fact. They could, 
 therefore, only be presumed to be what they ought 
 to have been ; and what they ought to have been 
 was eminently a question of natural law. More than 
 
 1 This is well noted by the late Professor Brissaud, of Toulouse, in his 
 interesting study of the liberal movement in France {Un Liberal au XVII' 
 siecle : Claude Joly, 1607-1700 ; Paris, 1898), p. 5 : " Si Ton se reporte par la 
 pensee k la fin du seizieme siecle, on est tout surpris de trouver, au lieu 
 d'une seule foi politique, une veritable melee des esprits : theorie du contrat 
 social, th^oiie de la souverainete populaire, systemes aristocratiques, ou 
 meme democratiques, c'est une confusion extreme." 
 
 E 
 
50 ESSAYS IN THE LAW 
 
 this, it was a prevalent opinion tliat the original con- 
 tract itself was of the nature of positive law, and 
 subject to the Law of Nature, like all other branches 
 of law. This or that particular State might be 
 instituted by convention ; but, a State being once 
 established, its rights and powers, it was said, were 
 determined by principles of natural right paramount 
 to all conventions.^ 
 
 The various controversial exigencies of the 
 Reformation and the Catholic counter-Reformation 
 produced endless divisions and cross-divisions among 
 Catholic and Protestant publicists, unexpected or 
 even paradoxical in a modern reader's eyes. We find 
 Dominican and Jesuit champions of the Papacy 
 deliberately referring the foundation of the State to 
 natural reason alone, in order to deprive the prince 
 of any claim to spiritual jurisdiction. This, with the 
 Decretum of Gratian still claiming respect, was a 
 perilous line of argument. Again, the principles of 
 the Law of Nature were invoked to moderate the 
 letter- worship of the Reformers : the text of Scripture, 
 the CathoUcs said, must be taken with, and subject 
 to, the universal principles discoverable by reason, 
 and construed in a manner consistent with them.^ 
 Further, and this comes very near modern methods, 
 
 ^ Authorities and references in Gierke, Johannes Althusius, passim. 
 As to the last-mentioned point, see at pp. 105, 106. And see now F. W. 
 Maitland's translation (with an excellent introduction) of the section " Die 
 publicistischen Lehren des Mittelalters " in Gierke's Das deutsche Genossen- 
 scJtaftsrecM, vol. iii., stib tit., Political Theories of the Middle Age, Cambridge, 
 1900. 
 
 ^ So, in England, Pecock (Repressor) as early as 1455. Pecook's argu- 
 ments were, however, suspected of heresy and indeed formally charged with 
 it, though on this point he seems in accord with scholastic tradition. 
 
n HISTORY OF THE LAW OF NATUEE 51 
 
 it was sought to assure the sanctity of property and 
 contract, including the supposed original contract 
 itself, by representing those institutions as part of 
 the immutable Law of Nature ; this view was sub- 
 stantially adopted by Grotius, and has largely entered 
 into modern economic doctrine. The process was 
 made more plausible by identifying the ius gentium 
 of the Corpus luris with the Law of Nature of the 
 canonists. There were even those who dared assert 
 that " Deus ipse ex promissione obligatur." ^ 
 
 One much - agitated topic was the relation of 
 sovereign power to natural and positive law. No 
 doubt was entertained that the Law of Nature was in 
 some sense above all earthly potentates. This did 
 not obviously decide the question whether a subject 
 could in fact be justified in disobeying his lawful 
 sovereign's commands as being contrary to the Law 
 of Nature.^ It was admitted that merely conse- 
 quential or " secondary " rules of natural law, which 
 might be binding in the absence of positive enactment, 
 could be modified or restrained by positive law. St. 
 Thomas was decisive on that point.' Subject to this 
 distinction, however, it was the prevalent mediaeval 
 opinion that commands of the prince contrary to the 
 Law of Nature were not binding on his subjects 
 and might be lawfully resisted — a doctrine sometimes 
 tempered by advising the subject to presume, in 
 
 1 Gierke, op. cit. 270, 271. 
 
 ' No subject, of course, could be bound by his aUegianoe to commit a 
 breach of manifest elementary rules of faith or morals. Cases of that 
 kind are outside the argument. 
 
 = (?ec. Secundcie, qu. Ivii., De lure, arts. 2, 3, 
 
52 ESSAYS IN THE LAW 
 
 case of reasonable doubt, that the prince's judgement 
 was right. A more dubious question was whether 
 sovereign power was subject to positive as well as 
 natural law. Did the imperial potestas legihus soluta 
 belong of right to all independent sovereigns ? In 
 other words, were they the fountain of positive law 
 and above it ? There was good authority for saying 
 so.^ But it was also vigorously maintained that the 
 ruler could be guilty of a breach of positive as well as 
 natural law, full sovereignty being reserved to the 
 people, or in spiritual matters to the congregation 
 of the faithful. Before the Keformation, Marsilio of 
 Padua was the leading champion on this side.^ This 
 is the distinction of " organic " or " fundamental " 
 from ordinary institutions. It is possible to argue, 
 as Hobbes in efiect did later, that such a distinction 
 is incompatible with the Law of Nature. At this 
 day it exists in a large majority of civilised common- 
 wealths. 
 
 As Protestant writers did not accept the authority 
 of the Church, of the Canon Law, or of Aristotle, and 
 the Roman disputants of the counter-Reformation 
 were anxious to confute the Protestants on their own , 
 ground, the tendency of sixteenth - century contro- 
 versy, as well as of Renaissance learning in general, 
 was to bring the texts of classical Roman law into 
 greater prominence. Thus a more definitely secular 
 
 ^ " Positiva lex est infra prinoipantem sicut lex naturalis est supra." 
 Aegid. Rom. iii. 2, c. 29. This, with the caution that " principans " is 
 the king in Parliament, has long been the accepted English constitutional 
 doctrine. 
 
 ^ Gierke, op. cit. 266, 
 
n HISTOEY OF THE LAW OF NATURE 53 
 
 and legal cast was given to the whole treatment of 
 the Law of Nature, and the way was prepared for 
 the great construction of Grotius. Not that G-rotius 
 has anything disrespectful to say of the mediaeval 
 doctors. On the contrary, he ascribes the greatest 
 weight to their agreement on questions of moral 
 principle ; when they are found unanimous on 
 such questions, their opinion is more than prob- 
 able : " ubi in re morum consentiunt, vix est ut 
 errent." ^ 
 
 Here we may leave the Law of Nature ready to 
 achieve its development into the modern Law of 
 Nations, and turn to its fortunes in our own country. 
 The Canon Law, as we have seen, was the principal 
 vehicle of the Law of Nature, and canonists were 
 anything but popular among English laymen. In 
 politics they were associated with attempts to en- 
 croach on the king's authority for the benefit of 
 foreigners, in common life with the meddling and 
 vexatious jurisdiction of the spiritual courts. Talk- 
 ing of the Law of Nature, therefore, was not a good 
 way to most English ears, and it is not strange that 
 we find Httle about it in English authors. William 
 of Ockham, of whom we may justly be proud as our 
 countryman, can still hardly be counted for this 
 purpose. There is nothing particularly English about 
 his career or his work ; he is cosmopolitan, like all 
 the great mediseval doctors. 
 
 One English royal judge, Sir John Fortescue, did 
 commit himself a century later to treating of the 
 
 1 De lur. B. et P. Prolegg. a. 52. 
 
54 ESSAYS IN THE LAW 
 
 Law of Nature by name, but the case is in every way 
 exceptional. His book, De Natura Legis Naturae, 
 was a plea for the Lancastrian title to the crown of 
 England, addressed to Continental readers in the 
 hope of obtaining Continental support. It is at best 
 the artificial performance of a champion wielding 
 unfamiliar arms in a strange field. Compared with 
 the work of trained dialecticians, it is of slight iuterest 
 and of no value. ^ What little is said of the Law of 
 Nature in Fortescue's principal and really interesting 
 book, Be Laudibus Legum Angliae — a book also 
 intended, it would seem, for Continental readers — 
 is ornamental, and of no greater importance. 
 
 We might expect to find the mark of the regular 
 scholastic doctrine in the early history of the Court 
 of Chancery, but there are only occasional references 
 to law and reason — we shall see the importance of 
 this term presently — as the standard of decision. 
 The current form, " for God and in the way of 
 charity," is an appeal to the divine law of the Church 
 rather than to natural law properly so called. Ex- 
 press invocation of the Law of Nature seems rather 
 to have been purposely avoided. Probably it was 
 felt that it would do more harm than good. The 
 king's discretion was understood to be supreme in 
 " matters of grace," and especially large wherever 
 the profit of the Crown, or the rights of any one 
 claiming by grant from the Crown, were affected. 
 Any deduction of it from the Law of Nature would 
 
 ' Mr. Plummer's account in his introduction to The Oovernance of England, 
 at pp. 82-84, is enough for most purposes. 
 
n HISTORY OF THE LAW OF NATURE 55 
 
 have looked like an attempt of canonical formalists 
 to regulate the king's prerogative in some outlandish 
 fashion of their own. After the Reformation it was 
 a harmless exercise to identify the Chancellor's equity ' 
 with the Law of Nature or with a Roman praetor's 
 jurisdiction. I do not know of any example earlier 
 than the seventeenth century.^ Moreover, the ad- 
 ministration of equity in anything like the modern 
 sense was, in the fourteenth and fifteenth centuries, 
 by no means the sole or chief business of the Court of 
 Chancery. 
 
 For distinct English recognition of the Law of 
 Nature we must look to such law and jurisdiction as 
 had an avowed cosmopolitan character, and princi- 
 pally to the law merchant.^ This was always under- 
 stood to be founded on general reason and convenience, 
 evidenced by the usage of merchants. " The law 
 merchant, as it is part of the Law of Nature and 
 Nations, is universal and one and the same in all 
 countries in the world." ^ In 1473, it was said by 
 StiUitigton, Edward IV. 's Chancellor, in the great 
 case of larceny by a carrier " breaking bulk," that 
 the causes of merchant strangers " shall be determined 
 according to the Law of Nature in the Chancery." 
 Foreign merchants put themselves within the king's 
 jurisdiction by coming into the realm, but the jurisdic- 
 
 ^ See Malinea, Lex Mercatmia (a.d. 1656), 311. 
 
 ^ Tlie law of the Admiralty stood too much apart to be specially con- 
 sidered here. There were mutterings of insular pride against its cosmo- 
 politan jurisprudence as early as the fourteenth century. See the very 
 curious gloss quoted in Maitland's Bracton and Azo (Seld. Soc, 1895), at p. 125. 
 
 ' Sir John Davis, Concerning Impositions, c. 3, " dedicated to King James 
 in the latter end of his reign," first printed 1656. 
 
56 ESSAYS IN THE LAW 
 
 tion is exercisable "secundum legem naturae que est 
 appelle par ascuns ley marchant, que est ley universal 
 par tout le monde." ^ It is said that the practice 
 was to refer such causes to merchants by commission 
 from the Chancellor.^ In the ordinary jurisdiction 
 of the king's courts we find a trace, but only a trace, 
 of common lawyers envying the dialectic resources 
 of the ciAdlians and canonists. Yelverton said that 
 he did not see why, in the absence of authority, the 
 king's judges should not also " resort to the Law of 
 Nature, which is the ground of all laws." ^ It is 
 just possible that some design for enlarging the king's 
 power through judicial discretion was at the bottom 
 of this ; it is all but certain that in the following 
 century Henry VIII. had a plan to compass the same 
 end by favouring the study of the Civil at the expense 
 of the Common Law. Nothing came of it iu either 
 case, and the Tudors showed their wisdom by working 
 out their practical despotism in other ways and under 
 more national forms. 
 
 Theological and political tracts of the fifteenth 
 century * just enable us to say that the proper 
 English translation of ius naturale was "law of 
 kind." " Doom of natural reason " is used as a 
 synonym, and we have also the fuller expressions 
 " moral law of kind, which is law of God " (the 
 regular equation of ius naturale with ius divinum), 
 
 1 Y.B. 13 Ed. IV., 9, pi. 5. 
 
 2 Malines, I.e. In the thirteenth and fourteenth centuries suits between 
 merchants could be pleaded in the king's ordinary courts according to 
 law merchant : Y.B. 21 and 22 Ed. I., 75 ; 32 and 33 Ed. I, 377. 
 
 » Y.B. 8 Ed. IV., 12. 
 
 * Pecock, Repressor ; Dives and Pauper, printed 1536. 
 
n HISTORY OF THE LAW OF NATURE 57 
 
 " law of kind, which, is doom of reason and moral 
 philosophy." 
 
 We do find the Law of Nature making a consider- 
 able figure in the argument of two well-known cases 
 of the late sixteenth and early seventeenth centuries 
 — Sharington v. Strotton (the case of " Uses " in 
 Plowden), and Calvin's case (the post nati), 7 Co. Rep. 
 12 6. Both of these were highly exceptional, of the 
 first impression, and argued throughout on general 
 principle. As already hinted, there was no longer 
 any risk in using the Law of Nature to adorn an 
 argument, and the new learning of such civilians as 
 Alberico Gentili was making it fashionable again. 
 No light is thrown by such peculiar examples on the 
 usual habit of mind of English lawyers. 
 
 But there is a real link between the mediaeval 
 doctrine of the Law of Nature and the principles 
 of the Common Law. It is given by the use — correct 
 in both systems, though constant, indeed exclusive, 
 in the Common Law, and rather sparing in th e Canon 
 Law — of the words " reason " and " reasonable." 
 This was pointed out in the first quarter of the six- 
 teenth century by that very able writer, Christopher 
 St. Grerman, who must have been at least a fair 
 canonist as well as an excellent common lawyer. 
 In the preliminary part of Doctor and Student, after 
 the Doctor has expounded the species of law according 
 to the regular method of the schools, the Student 
 gives the law of reason as the first of the general 
 grounds of the law of England, and, in answer to 
 the Doctor's enquiry where he puts the Law of 
 
58 ESSAYS IN THE LAW 
 
 Nature, explains that in the Common Law that term 
 is not in use, but that where the canonist or civilian 
 would speak of the Law of Nature, the common 
 lawyer speaks of reason. Once pointed out, the 
 analogy is obviously just, and a real connexion at 
 least probable, for we are not to suppose that the 
 judges and Serjeants never knew any more of what 
 the canonists were doing than is disclosed by the 
 Year Books. In our own time, before the Judicature 
 Acts, it was the judicial etiquette for Common Law 
 and Equity judges to assume, whether they had it 
 or not, a more than modest ignorance of one another's 
 doctrines. Yet this striking passage of St. German 
 has been completely overlooked in modern times. 
 It would be easy not to discover from current ac- 
 counts of it that the Doctor and Student was anything 
 more or other than a text book of Common Law. 
 We can account for this only by the Reformation 
 having broken up the scholastic tradition, and made 
 it the fashion to despise the Middle Ages. Sir Henry 
 Finch, writing early ia the seventeenth century ^ — 
 say in the third generation from St. German — had 
 quite lost the thread ; what he says of the Law of 
 Nature is mere confusion. He actually makes out 
 the law of reason (by which he seems to mean some- 
 thing approximating to the " secondary " natural 
 law of the schoolmen) to be something different. 
 Not a lawyer, but a divine. Hooker, was the latest 
 English writer who maintained the tradition sub- 
 stantially on its accepted lines, though not without 
 
 1 Discourse of Law, first published 1613. 
 
« HISTORY OF THE LAW OF NATURE 59 
 
 variations and expansions wMch seem to be his own.^ 
 An English reader in search of a general exposition 
 of the Law of Nature as understood down to the 
 Renaissance might, indeed, do well enough to take 
 Hooker for his guide. 
 
 Hobbes retained the names of natural law and 
 natural right, and (contrary to what is sometimes 
 said by writers who have not studied him adequately) 
 his language as to natural law being immutable and 
 eternal is as strong as anything to be found in 
 orthodox publicists. But by defining lex naturalis ^ 
 with reference to self-preservation as the only guiding 
 principle, he broke away from previous authority 
 to work out a method all his own. The practical 
 contents of Hobbes's morality are, nevertheless, not 
 very different from other people's, nor was his poli- 
 tical system without forerunners. But this does not 
 concern us here. Richard Cumberland, Bishop of 
 Peterborough, went about to refute Hobbes in the 
 name of the Law of Nature (1672). But he made no 
 attempt to return to mediaeval lines. As to authority, 
 he tries to get a fresh start from the Roman lawyers ; 
 as to principles and method, he is (as Hallam justly 
 observed) a precursor of the modern utilitarians. 
 By his time the scholastic Law of Nature had finally 
 ceased to count in English speculation. In France 
 it fared no better, if we may judge by Montesquieu, 
 who had lost the historical tradition as completely 
 
 1 Eccl. Pol. bk. i. cc. 2, 3, 8, 9, 10, 12. 
 
 ^ Leviathan, c. 14. Hobbes's ius naturale is not a rule at all, but every 
 man's natural liberty to use his own power for his own advantage. 
 
60 ESSAYS IN THE LAW 
 
 as any insular moralist. He supposed the Law of 
 Nature to consist only of sucli rules of conduct as 
 would be applicable in default of any settled govern- 
 ment ^ — that is, in the fictitious ' ' state of Nature, ' ' with 
 which the original Law of Nature had nothing to do. 
 But the Law of Nature was not dead : it was only 
 transformed into a shape more available for making 
 conquests in the modern world. Its doctrine, purged 
 of clericalism, had been assimilated, through Grrotius 
 and his successors, by the modern Law of Nations, 
 and had thus become part of the common stock of 
 eighteenth-century publicists. In that form it was 
 accepted without demur by rationalist philosophers 
 who would have scorned to be knowingly beholden 
 to the Middle Ages. From the Continent it came 
 back to England, rather as an appanage of polite 
 letters than as a constituent of technical juris- 
 prudence. Blackstone made use of it at second or 
 third hand to ornament — though merely to ornament 
 — the introductory chapters of his Commentaries. 
 Lord Mansfield took up the rationalising movement 
 as a practical reformer, and under his guidance it 
 left permanent marks on more than one branch of 
 English law. From the Decretum of Gratian to the 
 equitable application of the " common coimts," on 
 grounds of " natural reason and the just constructit)n 
 of the law," ^ and the full recognition of the law 
 merchant in the king's courts, may seem a long way. 
 The journey was certainly roundabout ; but there is 
 no real break in it. 
 
 ',s lois, 1. 1, c. 2. ^ Blackst. Comm. iii. 161. 
 
u HISTOEY OF THE LAW OF NATURE 61 
 
 There is mucli to be said of the function of natural 
 or universal justice, including the idea of reasonable- 
 ness in its various branches, in the later developments 
 of our system. In particular an important part has 
 been played by natural law, under the name of 
 " justice, equity, and good conscience," or otherwise, 
 in the extension of English legal principles under 
 British political supremacy, but beyond English or 
 Common Law jurisdiction. But this topic is large 
 enough to deserve separate consideration. 
 
II.- — {continued) 
 THE HISTORY OF THE LAW OF NATUEE ^ 
 
 II 
 
 We have seen in the former part of this study that 
 in the course of the seventeenth century the classical 
 tradition of the Law of Nature was broken up after 
 the Reformation controversies, with the result that 
 in this country it has been forgotten or misunderstood 
 ever since. Oblivion went so far that it was possible 
 for Bentham and his followers to suppose quite 
 honestly that the Law of Nature meant nothing but 
 individual fancy. But at the same time that the 
 Law of Nature ceased to be honoured among us in 
 speculation, it was entering on new spheres of practical 
 power. The modern law of nations was founded by 
 Grotius on a revised scheme of natural law, and his 
 foundations have always and everywhere been treated 
 as sound except by one insular and unhistorical school. 
 Grotius's doctrine was expanded and made the 
 common property of public men by his successors ; 
 it was accepted in this current form by the English 
 publicists of the eighteenth century, and thus had 
 considerable influence on English and still more 
 
 ' Journal qf the Society of Comparative Legislation, 1901, p. 204, 
 62 
 
n HISTORY OF THE LAW OF NATURE 63 
 
 on Scottish, expositions not only of the law of nations 
 but of public law in general. In the domain of private 
 law the ideas of reasonableness and natural justice, 
 which do not the less belong to the Law of Nature 
 because they have been called by different names at 
 different times, leapt into fresh activity, and created 
 or largely modified whole bodies of doctrine. Later, 
 by a process which at first sight looks paradoxical, 
 the same ideas became the vehicle for spreading the 
 distinctive principles and methods of the Common 
 Law in lands where it did not and could not formally 
 claim any jurisdiction. We shall now try to follow 
 the Law of Nature in these several careers of conquest, 
 of which some at least are far from being closed. 
 
 With regard to International Law, it is notorious 
 that all authorities down to the end of the eighteenth 
 century, and almost all outside England to this day, 
 have treated it as a body of doctrine derived from 
 and justified by the Law of Nature. There has been 
 a certain divergence of opinions on the question 
 whether the law is. established by the reason of the 
 thing alone — natura rationalis, as Grotius says — or 
 by the actual usage of civilised nations. But this 
 divergence is really more in expression than in any 
 fundamental conception. It was never asserted by 
 the most zealous advocate of the Law of Nature 
 that an individual opinion of what is just can, as 
 such, make a general rule. Here, as elsewhere, we 
 must apply the principle of Aristotle, and deem that 
 to be reasonable which appears so to competent 
 persons. There must be a competent and prevalent 
 
64 ESSAYS IN THE LAW 
 
 consent, and the best evidence of such consent is 
 constant and deliberate usage. Discordant opinions 
 as to what is right or convenient could never produce 
 a uniform accepted usage, as, on the other hand, no 
 other reason can be assigned for the general accept- 
 ance of certain usages by independent States than 
 that they are generally believed to be convenient 
 and just. In fact, the elements of reason and custom 
 have been recognised by the highest authorities as 
 inseparable, and strengthening one another. Thus 
 the English law officers (among whom Lord Mansfield, 
 then Solicitor-General, took the leading part) wrote 
 in their celebrated opinion in the case of the Silesian 
 Loan that the law of nations is " founded upon 
 justice, equity, convenience, and the reason of the 
 thing, and confirmed by long usage." ^ In the very 
 infancy of the doctrine Alberico Gentili, while he 
 declared that the ius gentium applicable to the 
 problems of war was identical with the Law of Nature, 
 and claimed for it the authority of absolute reason, 
 also vouched the continuing and » general consent of 
 mankind to witness it ; not an imaginary consent of 
 all men at any one time, but an agreement constant 
 and prevalent — in fact, qtiod successive placere omnibus 
 visum est. For all practical purposes we may define 
 International Law, with the late Lord Russell of 
 Killowen, as " the sum of the rules or usages which 
 civilised States have agreed shall be binding upon 
 
 ^ This opinion is commonly referred to in the French version given in 
 Martens' collection. The English may be seen in Holliday's Life of William 
 Earl of Mansfield, London, 1797, pp. 428 et seq. 
 
II HISTORY OF THE LAW OF NATURE 65 
 
 them in their dealings with one another," remember- 
 ing, however, that the agreement need not be formal 
 or express. Such rules may, of course, be modified, 
 generally or partially, by convention or usage,^ in 
 any manner consistent with the objects for which the 
 law of nations exists.^ This is not only required 
 by convenience, but wholly in accordance with the 
 doctrine of the Law of Nature as received in the Middle 
 Ages, which expressly admitted the validity of positive 
 rules and conventions not contrary to fundamental 
 principle. If any one ever did want to lay down a 
 dogmatic and immutable code of NaturrecM, it was 
 not the schoolmen, but the utilitarians. 
 
 Some English writers, knd even one or two eminent 
 judges, have rather superfluously protested that the 
 opinions of text- writers cannot make law for nations.^ 
 It is certain, as Lord Stowell pointed out, that they 
 cannot ; but the consensus of authors of good repute, 
 or even the clear statement of one eminent author, 
 may be taken as evidence of the accepted practice 
 where practice is not shown to be otherwise. 
 " Vattel," said Lord Stowell in a leading case on the 
 right of visit and search, " is here to be considered, 
 not as a lawyer merely delivering an opinion, but 
 
 1 See per Lord Stowell, The Santa Cruz, 1 Rob. Adm., at p. 58 ; The 
 Flad Oyen, ibid., at p. 139 ; The Henrick and Maria, 4 Rob., at p. 54. 
 
 ^ All moralists allow that in some cases it is better, or less bad, to break 
 an agreement that ought never to have been made than to perform it. The 
 exception must apply to nations as well as individuals, though pactum serva 
 is the rule, and it is not good to dwell on exceptions. A treaty for the 
 partition of an unoffending neighbouring State, for example, is only a 
 conspiracy aggravating the crime. 
 
 " See Cockbum C.J.'s observations in B. v. Keyn, 2 Ex. Div., at pp. 
 202-3, which seem to overlook the true doctrine laid down long before by 
 Lord Stowell. 
 
 P 
 
66 ESSAYS IN THE LAW 
 
 as a witness asserting the fact — ^the fact that such 
 is the existing practice of modern Europe." ^ It is 
 equally plain that no State can maintain claims to 
 exercise a novel jurisdiction over citizens of other 
 States by appealing to the Law of Nature in the sense 
 of the opinion entertained by itself alone of what 
 is right and convenient in the case. An argument 
 really of this kind was urged mth great ability 
 and eloquence, but without success, by the counsel 
 for the United States in the Bering Sea arbitration. 
 All this, again, is in strict agreement with the general 
 principles of natural law. No particular opinion of 
 this or that learned person, much less of an interested 
 party, can make that reasonable which is not accept- 
 able as such to the general opinion of civilised 
 mankind. 
 
 In this country questions of international law 
 have mostly arisen in Admiralty jurisdiction, and 
 our classical authorities consist to a great extent of 
 Lord Stowell's judgements on points arising out of 
 the exercise of belligerent rights at sea in the war 
 against the French Republic and Empire. There is 
 no doubt whatever as to the kind of law that Lord 
 Stowell thought he was administering. It was ius 
 gentium in the fullest sense, a body of rules not merely 
 municipal, but cosmopolitan. For him the Court of 
 Admiralty was a court of the law of nations, and of 
 the law of nations only, not intended to carry into 
 effect the municipal laws of this or any other country. 
 
 1 The Maria, 1 Bob., at p. 363. To the same effect is the judgement 
 of the Supreme Court of the U.S., The Paquete Habana, The Lola (1899), 
 175 U.S. 677, 700. 
 
n HISTORY OF THE LAW OF NATURE 67 
 
 " The seat of judicial authority is locally here, in 
 the belligerent country, according to the known law 
 and practice of nations, but the law itself has no 
 locality." ^ As for the opinion that nations are 
 bound by the law of treaty only, and there is no 
 other law of nations than that which is derived 
 from positive compact and convention. Lord Stowell 
 rejected it as fit only for Barbary pirates.^ We 
 must either admit that modern International Law 
 is a law founded on cosmopolitan principles of reason, 
 a true living offshoot of the Law of Nature, or ignore 
 our own most authoritative expositions of it. In 
 fact, these utterances have been wholly ignored, so 
 far as I know, by English publicists of the extreme 
 insular school. 
 
 Although the mediaeval mould of natural law was 
 broken, the substance of its ideas passed into the 
 common stock of European publicists through the 
 new learning of the law of nations, and their influence 
 was manifest in a rationalist movement which had 
 many branches — rationalist because the Law of 
 Nature is essentially so. This last statement would 
 have been a truism in the sixteenth century, and is 
 still familiar on the Continent ; it may seem a paradox 
 to some English readers nowadays, but it remains true. 
 Scotland, kept by political traditions in closer touch 
 with Continental thought than England, had an 
 important share in spreading the movement in these 
 kingdoms. ' It was no accident that our two great 
 
 1 TU Maria, 1 Rob. 341, 350 ; The Two Friends, 2 Rob. 280 ; TU 
 Walsingham Packet, ibid., at p. 82. 
 
 2 The Helena, 4 Rob. 7. 
 
68 ESSAYS IN THE LAW 
 
 rational law reforms of the second half of the 
 eighteenth century were carried out by Lord 
 Mansfield, a Scotsman by birth. 
 
 First of these must be mentioned, though this is 
 not the place for a full account, the definite adoption 
 of the law merchant as part of the Common Law. ■ 
 That body of custom had anticipated some of the 
 characters of International Law ; it claimed an 
 authority independent of any particular local juris- 
 prudence, as being founded on general reason and 
 usage approved as reasonable ; in other words, it 
 was a branch of the Law of Nature, and it was con- 
 stantly described as such. Under Lord Mansfield it 
 was received, not as a collection of rules to which 
 only legislation could add, but as a coherent system 
 which did not lose its vitality and power of develop- 
 ment from within because it was incorporated with 
 the law of the land. Such, at least, is the better 
 modern opinion as to its present standing.^ 
 
 Hardly less important was the introduction in 
 Common Law procedure of a liberal and elastic 
 remedy on causes of action quasi ex contractu. Black- 
 stone, following Lord Mansfield's creative example 
 as a faithful expositor, said in so many words of this 
 class of actions — those of which the count for " money 
 had and received to the plaintiff's use " is the type — 
 that they arise " from natural reason and the just 
 construction of the law." ^ Thus the whole modern 
 
 1 See the late Sir Francis Palmer's article in the Law Quarterly Review 
 or July 1899 (xv. 245). 
 
 ^ Blackst. Comm. iii. 161. The best-known statement by Lord Mansfield 
 himself is in Moses v. Macfarlan (1760), 2 Burr. 1005. 
 
11 HISTORY OF THE LAW OF NATURE 69 
 
 doctrine of what we now call quasi-contract rests on 
 a bold^ and timely application, quite conscious and 
 avowed, of principles derived from the Law of Nature. 
 
 One of the most characteristic and important 
 features of the modern Common Law is the manner 
 in which we fix the measure of legal duties and 
 responsibilities, where not otherwise specified, by 
 reference to a reasonable man's caution, foresight, 
 or expectation, ascertained in the first instance by 
 the common sense of juries, and gradually consolidated 
 into judicial rules of law. The notions of a reason- 
 able price and of reasonable time are familiar in our 
 law of sale and mercantile law generally. Within the 
 last century and a quarter, or thereabouts, the whole 
 doctrine of negligence has been built up on the founda- 
 tion of holding every lawful man answerable for at 
 least the amount of prudence which might be expected 
 of an average reasonable man in the circumstances. 
 Now St. German pointed out as early as the sixteenth 
 century that the words " reason " and " reasonable " 
 denote for the common lawyer the ideas which the 
 civilian or canonist puts under the head of " Law of 
 Nature." ^ Thus natural law may fairly claim, in 
 principle though not by name, the reasonable man of 
 English and American law and all his works, which 
 are many. 
 
 Sometimes, though not often, questions have come 
 before our Courts of purely municipal jurisdiction 
 
 1 " Lord Holt used to say that he was a bold man that first ventured on 
 them [the general or common counts], though they are now every day's 
 experience." — 1 Wms. Saund. ed. 1871, 366. 
 
 ' See p. 57 above. 
 
70 ESSAYS IN THE LAW 
 
 which were so much " of first impression " that there 
 was really no applicable authority at all. Upon 
 such questions, topics of argument were necessarily 
 sought in the most general principles of justice and 
 convenience, and discussed and weighed with very 
 little reference to any more specific test. A mediaeval 
 lawyer would have said of such questions that, 
 since positive law did not afiord any solution of them, 
 they were soluble by the Law of Nature only. The 
 best-known example in this kind is the long-continued 
 controversy on the existence of copyright and other 
 analogous rights at Common Law, independent of 
 legislation — a controversy which produced a great 
 body of ingenious argument and more than one 
 notable conflict of judicial opinions. We have no 
 occasion to say anything here of the merits or of the 
 result, which dialectically was a drawn battle,'- but 
 only to note that the arguments and opinions on 
 both sides were Naturrecht pure and simple. 
 
 The principles of natural justice are recognised 
 and applied by name in the class of cases where our 
 Courts have had to review the exercise of quasi- 
 judicial powers by the boards, committees, or other 
 governing bodies, however described, of divers institu- 
 tions and societies. There is a preliminary question 
 whether the power which the governing body has 
 purported to exercise against an individual was 
 
 1 The last judicial discussion was in 1854 — Jefferys v. Boosey, i H.L.C. 
 815. There the judges were divided, and the House of Lords unanimous 
 for the negative opinion. But the actual final decision was not that copy- 
 right did or did not exist at Common Law, but that, if it ever did, it had 
 been abolished by the Statute of Anne which conferred copyright for a 
 term of years. 
 
n HISTORY OF THE LAW OF NATURE 71 
 
 " judicial " or " absolute." An absolute discretion 
 for whicb no reasons need be given may be conferred 
 either by Statute or by the agreement of the persons 
 concerned (for example, by the terms on which an 
 appointment has been offered and accepted), and 
 such a discretion, where it has been conferred, cannot 
 be impeached on any ground short of fraud. In 
 other cases the Court will consider whether the rules 
 of natural or universal justice have been observed ; 
 the expressions are synonymous and equally current. 
 Those rules are, for this purpose, that when a person 
 is deprived on the ground of alleged misconduct of 
 an ofl&ce or honourable rank, or of an interest in 
 property administered ^ by an association for the 
 benefit of its members, he must have notice of the 
 charge against him and an opportunity of being 
 heard, and the special rules, if any, governing pro- 
 ceedings of that kind in the institution or society 
 in question must be exactly followed, and the decision 
 must be arrived at in good faith, with a view to the 
 common welfare. If these conditions are satisfied, 
 the Court will not examine the merits of the de- 
 cision as if it were sitting on an appeal. The juris- 
 diction is not of an appellate, but of a prohibitory 
 nature ; it is paramount to the jurisdiction of the 
 " domestic tribunal," which, on the other hand, 
 is not interfered with so long as it does not 
 ofiend against the paramount rules of universal 
 justice. 
 
 1 The legal title to such property is of secondary importance. It 
 may be corporate, or vested in trustees, or held in common by all the 
 members. 
 
72 ESSAYS IN THE LAW 
 
 Even in the case of a summary executive authority 
 founded on necessity (whidi may be said to be itself 
 a matter of natural right), the rules of natural justice 
 must be observed so far as practicable. The master 
 of a ship has such an authority, and this is perhaps 
 the only known case.^ 
 
 It would be a strong extension of these principles 
 to apply them to the judicial acts of a competent 
 foreign tribunal within its jurisdiction, and it is not 
 known to have been actually done in England. Still, 
 there is some authority for saying that, in an extreme 
 case, a foreign judgement showing manifest disregard 
 of universal rules of justice would itself be dis- 
 regarded here. In cases where this topic has been 
 suggested, other more definite grounds of objection 
 have been present, such as want of jurisdiction. 
 But judges of great eminence have claimed for our 
 Courts a reserved power of taking the broader ground 
 at need. It is certain, on the other hand, that our 
 Courts do not pretend to review the manner in which 
 a foreign Court administers its own rules of procedure, 
 nor to require that foreign procedure should conform 
 to any of our merely local standards.^ The exclusion 
 of witnesses on the ground of interest, for example, 
 is a system which we have discarded, but we cannot 
 complain of its maintenance in other jurisdictions, 
 nor, contrariwise, of the admission in evidence of 
 
 1 TU Agincourt, 1 Hag. Adm. 271, 33 R.R. 717. 
 
 ^ See on this delicate subject Westlake, Private International Law, 3rd 
 ed. 351 ; Dicey, Conflict of Laws, 2nd ed. 403 ; Simpson t. Fogo, 1 H. & M. 
 195, 136 R.R. 90, the reported ease where the strongest remarks occur ; 
 Pemberton v. Himhes [1899] 1 Ch. 781, 790. 
 
n HISTORY OF THE LAW OF NATURE 73 
 
 hearsay and other matters which we should exclude. 
 In this region of specific regulation the part of natural 
 law is, as the mediseval doctors said, only secondary, 
 and is confined to giving to authentic acts and instru- 
 ments, in case of doubt, that interpretation and effect 
 which may appear most fitted to work substantial 
 justice. 
 
 As to the body of doctrine known under the head 
 of Conflict of Laws or Private International Law, 
 its authority was originally founded on considerations 
 of natural justice, for so much at least is implied in 
 the fact that, though it is not ius inter gentes, it has 
 always been deemed to belong to the law of nations 
 in the wider and more ancient sense of ius gentium. 
 But it has now for many years been as much part 
 of the municipal law of England as the law merchant, 
 and it becomes daily less and less needful or useful, 
 in any normal case, to cite foreign authorities ^ or 
 resort to general principles of convenience. The 
 ideal is still cosmopolitan ; the actual law of the 
 Courts is national ; and I believe this is so, or tending 
 to be so, in other countries also. 
 
 Students of comparative jurisprudence need not 
 be reminded that there are extensive territories 
 under British dominion in which English law has 
 never been received as a whole, or introduced by any 
 sovereign act except in particular local jurisdictions 
 
 1 This is not subject to any exception as to the ascertainment of foreign 
 law in the particular case ; for that, in our system, is matter not of authority 
 but of evidence, though parties may, and often do, agree to put in the text 
 of a foreign Code, or appropriate parts of it, instead of calling foreign experts 
 to prove their law. 
 
74 ESSAYS IN THE LAW 
 
 and for limited purposes.^ The most remarkable 
 example' is afiorded by British India. Here we find 
 that the Law of Nature has played a singular and 
 almost paradoxical part. It has been the means of 
 effecting a large importation of English ideas and 
 principles in regions where any formal Common Law 
 jurisdiction was not only not asserted, but formally 
 disclaimed. 
 
 In the early days of our Indian settlements Euro- 
 pean traders, like all persons in Eastern countries, 
 were presumed to carry their personal law with them. 
 The charter of 1683, principally intended for Bombay, 
 seems to have contemplated a Court administering 
 to such traders, not the Common Law, but the law 
 merchant. If this experiment proceeded at all, as 
 I think it did not, it left no permanent mark. In 
 the following century the Supreme (now High) 
 Courts of the Presidency towns were established by 
 the authority of Parliament to administer English 
 law to European British subjects withiu limited 
 territorial jurisdictions.^ Otherwise, neither the 
 King's Courts nor the East India Company's Courts 
 were authorised or, in fact, assumed (after a transitory 
 stage of disastrous experiment) to administer English 
 law as such. They were directed to do justice 
 
 1 In one Crown colony, Trinidad,, there has never been any wholesale 
 reception of English law, but a series of enactments has anglicised one branch 
 after another till there is practically nothing else left in either substantive 
 law or procedure. There may be other examples unknown to me, but such 
 cases are of little general importance, and they do not belong to the present 
 enquiry. 
 
 " For authorities and details see Sir Courtenay Ilbert's Government of 
 India, and, for the earlier history of the Supreme Court of Calcutta, Cowell's 
 Courts and Legislative Authorities in India, leots. ii. and iii. 
 
n HISTORY OP THE LAW OF NATURE 75 
 
 according to tte native laws of the parties, if applic- 
 able rules could be found. But it often happened 
 that no such rules could be found, and some general 
 provision had to be made. A Bengal Regulation of 
 1793, substantially copied at various intervals of 
 time in the other Presidencies and provinces, laid 
 down that in such cases the judges were " to act 
 according to justice, equity, and good conscience." 
 These words, down to the end of the eighteenth 
 century, could only be read by any publicist or 
 trained lawyer as synonymous with the Law of 
 Nature. But no detailed system of the Law of 
 Nature has ever acquired general authority. We 
 may safely assume that the attempts of European 
 publicists to construct such systems were unfamiliar 
 to the vast majority of the company's officers ; we 
 know that English utilitarianism, which its votaries 
 would have been only too eager to turn loose on the 
 mufassal,^ was only just born. English officials in 
 India being what they were, " an Englishman would 
 naturally interpret these words [' justice, equity, and 
 good conscience '] as meaning such rules and principles 
 of English law as he happened to know and considered 
 applicable to the case ; and thus, under the influence 
 of English judges, native law and usage were, without 
 express legislation, largely supplemented, modified, 
 and superseded by English law." ^ In our own time 
 this has been judicially approved as the proper 
 course. Equity and good conscience, we are told by 
 
 ■■■ The correct spelling, mufassal, has been officially adopted for some time. 
 The common Anglo-Indian form, mofussil, is a solecism. 
 ' Ubert, op. cit. 394. 
 
76 ESSAYS IN THE LAW 
 
 the Judicial Committee of the Privy Council, are 
 generally interpreted to mean the rules of English 
 law if found applicable to Indian society and circum- 
 stances.^ The moral predominance thus acquired by 
 the Common Law in British India may be compared 
 with that which was acquired by the Roman law, 
 not as positive law, but as " written reason," in the 
 fays de droit coutumier of the French monarchy. 
 
 There is a singular case of a British possession in 
 the East having been abandoned (it will be seen that 
 no other term is possible) to the Law of Nature for 
 several years. ^ In 1786 a native Eaja purported 
 to cede Penang, then uncultivated and unsettled, to 
 an officer of the East India Company. Possession 
 was taken, under orders from the Governor- General 
 and Council of Bengal, " in the name of his Majesty 
 George the Third and for the use of the Hon'ble 
 English India Company." The intention was ap- 
 parently to put Penang under the Bengal Regulations, 
 or at any rate the power to make Regulations. But 
 difficulties were raised as to the Governor-General's 
 jurisdiction, and the result was that for twenty 
 years (except for a few provisional directions issued 
 by the Governor-General on emergency) ^ there was 
 no positive law in Penang. At any rate, nobody 
 knew whether there was any, or if any, what ; and 
 in 1803 the judicial officer of the island reported that 
 
 1 L.E. 14 lud. App., at p. 96. 
 
 ^ Walter J. Napier, An Introduction to the Study of the Law Administered 
 in the Colony of the Straits Settlements, Singapore, 1898, «■ very interesting 
 pamphlet, from which the facts in the text are derived. 
 
 ' The local Government purported to make Regulations, but clearly 
 had no authority to do so : Napier, p. 6. 
 
11 HISTOKY OF THE LAW OF NATURE 77 
 
 the Law of Nature was the only law he could find to 
 guide him. He also found its guidance inadequate 
 for determining questions of succession and ad- 
 ministering estates/ which, indeed, was exactly what 
 any mediaeval doctor (not to say Aristotle) would 
 have told him to expect. At last, in 1807, the 
 Crown came to the rescue, and a regular Court was 
 established by charter. 
 
 It would seem, in the light of later authorities 
 and discussion, that the learned magistrate might 
 properly have followed the example of the Company's 
 Court in the mufassal, and administered under the 
 name of justice, equity, and good conscience, as much 
 English law as he thought reasonably applicable to 
 the local circumstances. However that may be, 
 the effect of the charter and subsequent legisla- 
 tion and usage was to introduce English law as the 
 territorial law of Penang, and ultimately of what 
 are now called the Straits Settlements as a whole. 
 
 ' " His Excellency in Coxincil has been heretofore informed that Prince 
 of Wales' Island, prior to its cession in 1785 [should be 1786] was under the 
 dominion of a chief who governed arbitrarily and not by fixed laws. It is 
 now become my painful duty to state that it has so continued to be governed 
 without fixed laws ; for upon the hour of my arrival on this island, there were 
 not any Civil or Criminal laws then in existence, and there are not even now 
 any Municipal, Criminal, or Civil laws in force on this island. The law of 
 nature is the only law declaring crimes and respecting property which, to 
 my knowledge, at this day, exists at Prince of Wales' Island ; and as Judge, 
 it is the only law which I can apply to the Criminal and Civil suits brought 
 in judgement before me. But as the law of nature gives me no precepts 
 respecting the right of disposing of property by wills and testaments, the 
 rights of succession and inheritance, and the forms and precautions necessary 
 to be observed in granting Probates of Wills and Letters of Administration 
 to intestates' effects, or respecting many things which are the subject of 
 positive law, I have often "been much embarrassed in the execution of 
 my duty as Judge in the Court of Justice in which I preside ; and many 
 cases there are in which I am utterly unable to exercise jurisdiction." — ^Mr. 
 Dickens' report to the Governor- General, ap. Napier, at p. 5. 
 
78 ESSAYS IN THE LAW " 
 
 But the part of the Law of Nature was not yet 
 played out. 
 
 The population of the new settlements included 
 a large number of Malays, Hindus, Chinese, and 
 possibly other Orientals, all of whom continued to 
 observe their native customs in matters of religion 
 and the family. No provision for administering their 
 native personal laws to native suitors was ever 
 made by any charter or other legislative act. The 
 Straits Settlements were, indeed, under the Govern- 
 ment of India for more than a generation (1830- 
 1866) ; but nothing took place during that time 
 which could operate as a " reception " of the Bengal 
 Regulations or any of the Anglo-Indian legislation 
 confirming them. Nevertheless, the need for recognis- 
 ing native custom in matters of family law was 
 practically the same as in India ; and, after a good 
 deal of discussion, it appears to have been now 
 settled for many years that in a general way " native 
 customs . . . will be recognised unless they be con- 
 trary to justice and general public policy." ^ Now 
 the general rule of our authorities is that only so 
 much of existing English law becomes the law of a 
 new English settlement as is reasonably apphcable to 
 local circumstances. This may be said already to 
 involve a reference to the Law of Nature, for the 
 appeal to the test of reasonableness is, as we have 
 seen, really the same thing. At any rate, there is 
 no express grant of jurisdiction to administer any 
 other positive law than our own. Again, it will 
 
 1 Extract from a judgement of the local Court of Appeal, ap. Napier, p. 39, 
 
n HISTORY OF THE LAW OF NATURE 79 
 
 hardly be maintained that Hindu or Mahometan 
 law can ever be binding on English judges, in the 
 cause before them, by its own intrinsic authority. 
 There seems, therefore, to be no other assignable 
 source of the jurisdiction which is in fact exercised 
 than the Law of Nature ; in other words the judicial 
 conviction of the Court that in a particular class of 
 cases not only is it not reasonable to apply English 
 law, but it is reasonable to apply the native custom 
 of the parties. It remains open to speculative 
 discussion whether we ought to say that in such 
 cases the Court is free to decide according to the 
 Law of Nature because there is nothing in the positive 
 law generally binding on the Court to exclude or 
 supersede it, or that the Court is bound to follow the 
 Law of Nature because, in the local circumstances 
 and in that class of cases, the Law of Nature is 
 embodied in the Common Law. That the law actually 
 administered is not the native personal law itself is 
 sufficiently shown by the care with which the claims 
 of " justice and general public policy " are reserved 
 as paramount. Thus a considerable part of the 
 inhabitants of the Straits Settlements live to this day, 
 and apparently thrive, as to a considerable proportion 
 of their afiairs, under a judicial discretion founded 
 on natural equity alone, and, though no doubt 
 becoming fixed in the way of precedent, never defined 
 by any external authority. 
 
Ill 
 
 LOCKE'S THEOEY OF THE STATE ^ 
 
 Locke's Essay on Civil Government is well laiown, 
 and is probably tke most important contribution ever 
 made to English, constitutional law by an author 
 who was not a lawyer by profession ; certainly there 
 is nothing to be compared to it xmtil we come to 
 Bagehot in our own time. Still I do not know that 
 it has ever been analysed by an English lawyer 
 with reference to its immediate purpose and circum- 
 stances. In fact Locke's political doctrine holds 
 quite a secondary place in such accounts of Locke 
 as are generally current in the hands of the educated 
 public. The Essay on Civil Government has been 
 overshadowed by the Essay on the Human Under- 
 ■ standing and the Letters on Toleration. This, together 
 with the special occasion,^ may perhaps be a sufficient 
 excuse for the present attempt. 
 
 The first thing to bear in mind about the Essay on 
 Civil Government is that it is essentially an apologia 
 for the Convention Parliament, no less than Hobbes's 
 
 ^ Proceedings of the British Academy, vol. i., 1904. 
 
 " The bicentenary of Locke's death. 
 
 80 
 
LOCKE'S THEORY OF THE STATE 81 
 
 Leviathan and Behemoth were an indictment of the 
 Long Parliament. It is true that in the body of 
 the work the language employed is studiously general. 
 But the date of publication, 1690, would alone be 
 enough to remove any doubts of the intention, and 
 moreover that intention is clearly stated in the 
 Preface to the two treatises of which the Essay is 
 the second. It may be well to cite Locke's own 
 words. " Reader, Thou hast here the Beginning 
 and End of a Discourse concerning Government ; 
 what Fate has otherwise disposed of the Papers that 
 should have filled up the Middle, and were more 
 than all the rest, 'tis not worth while to tell thee. 
 These which remain, I hope are sufficient to establish 
 the Throne of our great Restorer, our present King 
 William ; to make good his Title, in the Consent of 
 the People ; which being the only one of all lawful 
 Governments, he has more fully and clearly, than 
 any Prince in Christendom ; and to justify to the 
 World the People of England, whose love of their 
 just and natural Rights, with their Resolution to 
 preserve them, saved the Nation when it was on the 
 very brink of Slavery and Ruin," The doctrine 
 which Locke had to confute was, as is well known, 
 that of absolute monarchy ; the champion whom he 
 attacked by name and elaborately demolished in 
 the first of the Two Treatises of Government was, 
 however strange it may seem to us nowadays, not 
 Thomas Hobbes but Sir Robert Filmer. For us 
 Hobbes is the recognised founder of the English 
 school of politics and jurisprudence ; while Filmer, 
 
 G 
 
82 ESSAYS IN THE LAW 
 
 as the late Prof. Groom Eobertson incidentally ob- 
 served in discussing Hobbes (and I see no reason 
 to doubt the soundness of the remark), is saved by- 
 Locke from oblivion. In Locke's time Sir Robert 
 Filmer was fashionable among royalists and Hobbes 
 was not. Hobbes's uncompromising rejection of 
 ecclesiastical claims made it, in fact, impossible 
 for a party bound up with Anglican prelacy to have 
 anything to do with him ; and his justification of 
 obedience to any de facto government in being was 
 hardly less distasteful to maintainers of the divine 
 right of kings. Express controversy with Hobbes 
 was therefore quite useless for Locke's purpose. 
 Nevertheless Locke must have seen that, apart 
 from the party strife of the moment, Hobbes was the 
 really formidable adversary. Moreover Filmer, with 
 all his absurdities, had one fundamental point in 
 common with Hobbes. Indeed he was the only 
 publicist of the time, so far as I know, who mentioned 
 Hobbes with approval, though a limited approval. 
 " With no small Content," says Filmer, " I read Mr. 
 Hobs's Book De Give, and his Leviathan, about the 
 Rights of Sovereignty, which no man, that I know, 
 hath so amply and judiciously handled : I consent 
 with him about the Rights of exercising Government, 
 but I cannot agree to his means of acquiring it." ^ 
 Again : " We do but flatter ourselves, if we hope 
 ever to be governed without an Arbitrary Power. 
 No : we mistake, the Question is not, Whether there 
 shall be an Arbitrary Power ; but the only point is, 
 
 ^ Preface to Observations Concerning the, Original of Government (1679). 
 
m LOCKE'S THEORY OP THE STATE 83 
 
 Who shall have that Arbitrary Power, whether one 
 man or many ? There never was, nor ever can be 
 any People govern'd without a Power of making 
 Laws, and every Power of making Laws must be 
 Arbitrary : For to make a Law according to Law, is 
 Contradictio in adjecto." ^ This, I need hardly say, 
 is pure Hobbism. The impossibility of a limited 
 government or " mixarchy " ^ is the very burden of 
 Hobbes's Behemoth. 
 
 We need not be surprised, therefore, either at 
 the lack of specific dealing with Hobbes in Locke's 
 Essay, or at the ample internal evidence that Locke 
 had in fact studied Hobbes's doctrine with quite as 
 much critical attention as Eilmer's. 
 
 There is no reason for us to trouble ourselves with 
 Locke's polemic against Filmer, even so far as it 
 rims over from the First Treatise into the Essay.* 
 King Charles I.'s imaginary title as right heir of 
 Adam is as grotesque to any modern lawyer as Adam's 
 imaginary political dominion over the world can be 
 to any modern publicist. Good Sir Eobert wholly 
 failed, as Locke was at the pains to show at large,* 
 to prove what was the rule of succession to Adam's 
 original title, why it should have been primogeniture 
 rather than equal division, and whether it is discover- 
 able by the light of nature or imparted to us by any 
 and what revelation. It would be too curious, perhaps, 
 to consider whether he supposed the course of descent 
 
 1 Preface to TJie Anarchy of a Limited or Mixed Monarchy (1679). 
 
 2 This word was restored by Dr. Tonnies from Hobbes's MS. 
 ^ Chap. vi. of " Paternal Power." 
 
 * First treatise, chap, xi., " Who Heir ? " And see the Essay, ad init. 
 
84 ESSAYS IN THE LAW m 
 
 to be in fee simple, tail male, or how otherwise, and 
 whether after the Deluge Noah took by a new grant 
 and became a new stock of descent, or was in as of 
 Adam's old estate. I have known only one man 
 capable of doing full justice to that theme, my 
 lamented and most learned friend Mr. Challis. Locke 
 does point out that the whole of Filmer's theory 
 falls to the ground unless he can make out that 
 Shem was universal monarch.^ Adam's original 
 title, moreover, had already been relied on to quite 
 the opposite purpose by the section of the Inde- 
 pendents known as Levellers. They deduced to all 
 men, as sons of Adam, " a natural property, right, 
 and freedom " which could be duly exercised only 
 in a pure democracy.^ Sir Robert Filmer, then, is 
 out of the story ; nor is it worth while to guess what 
 kind of reply he could or would have attempted if 
 he had been living ; and we may proceed to Locke's 
 own account of political power. 
 
 At the outset the object of enquiry is thus defined : 
 " Political Power ... I take to be a Right of 
 making Laws with Penalties of Death, and conse- 
 quently all less Penalties, for the regulating and. 
 preserving of Property, and of employing the Force 
 of the Community, in the Execution of such Laws, 
 and in the Defence of the Commonwealth from foreign 
 Injury, and all this only for the publick Good." The 
 last clause, which I have italicised, gives the keynote 
 of the whole Essay. Princes and rulers hold their 
 
 1 First treatise, §§ 139-142 ; see too §§ 32-39. 
 
 2 Scherger, The Evolution of Modern Liberty (New York and London, 
 1904), p. 130. 
 
LOCKE'S THEOEY OF THE STATE 85 
 
 powers, whatever may be their legal form, not by an 
 absolute right founded on grant, covenant, or other- 
 wise, but on conditions in the nature of a trust, 
 and under liability to forfeiture if the conditions are 
 not fulfilled. Locke was no lawyer ; but it is allow- 
 able to believe that the peculiar doctrines of the 
 English Common Law as to conditional estates, and 
 of English Courts of Equity as to the duties of 
 trustees, although the latter was still in its infancy, 
 had a distract influence in moulding his dialectic. 
 For absolute origiaaUty there was no room. Every 
 kind of material for political construction was ready 
 to hand in the polemics of the Keformation con- 
 troversy, not to speak of the mediaeval writers who 
 had become to Locke's contemporaries far more 
 obscure than they are to us. The researches of 
 modern scholars, among whom the first place is 
 undoubtedly Gierke's, have shown that all possible 
 theoretical combinations, except the much later 
 system of Cabinet G-overnment which has demo- 
 cratised our monarchy, were anticipated, if not 
 developed, by thie political writers of the sixteenth 
 century. Locke's work was inevitably eclectic, and 
 must have been so even if it had not been conditioned 
 by a definite practical aim. He is so far from profess- 
 ing to be original that he is almost ostentatious in 
 following Hooker, whom he vouches at several points 
 in fairly copious extracts. Hooker, of course, was 
 an authority whom Anglicans were bound to treat 
 with respect. The skill and judgement of Locke's 
 performance were proved in the most conclusive 
 
86 ESSAYS IN THE LAW 
 
 manner by the commanding position whicli the 
 doctrine formulated by him acquired forthwith and 
 held for nearly a century. 
 
 Locke's political system, like all such systems for 
 a long time before and a long time after him, purports 
 to be founded on natural law ; that is to say, on rules 
 of conduct which the light of reason, without aid of 
 any special revelation, and without assuming the 
 existence or authority of any form of society, can' 
 discover as generally applicable to man as a rational 
 being. This, I think, is a sufficient account for our 
 purpose of what Locke's contemporaries understood 
 by the law of nature, however widely they differed 
 in their methods of ascertaining its principles, and 
 in the results which they derived. Hobbes was as 
 ready as any man to declare that the laws of nature 
 are immutable and eternal ; ^ which however did 
 not prevent his laws of nature from being unlike 
 other people's, or other people from regarding several 
 of Hobbes's immutably true propositions as not only 
 mischievous but demonstrably false. It is important 
 for any fair appreciation of Locke to remember that, 
 although the mediaeval tradition was interrupted, 
 the mediaeval assumption that there is a law of 
 nature, and that when ascertained it is supreme, 
 was still prevalent. This indeed had never been 
 contradicted, save so far as any Protestant con- 
 troversialists maiatained with Dumoulin that the 
 text of Scripture came first. Possibly both Locke 
 and his English opponents would have accepted the 
 
 ^ Leviathan, chap. xv. 
 
m LOCKE'S THEORY OF THE STATE 87 
 
 Reformers' position on that point ; it was not one 
 whicli ttey had occasion to consider. But Locke 
 does not confine the obligations of the law of nature 
 to mortal men. He proves a fortiori that those 
 obligations are binding on princes (§ 195). They 
 " are so great, and so strong, in the Case of Promises, 
 that Omnipotency it self can be tied by them. 
 Grants, Promises, and Oaths are Bonds that hold the 
 Almighty." Locke may or may not have read in 
 an earlier writer rediscovered for modern readers by 
 Gierke that " Deus ipse ex promissione obligatur." 
 
 Thus Locke was bound to begin with the " state 
 of nature." No other way of answering either Hobbes 
 or Filmer would have given formal satisfaction. But 
 this state, for Locke as for the Schoolmen, is rather a 
 perfectly conscious abstraction than an attempt to 
 construct the actual origin of society. The question 
 is what a man's rights would be in the absence of 
 any positive institutions. Nevertheless an actual 
 state of nature exists between independent princes 
 and rulers, and between any subjects of different 
 states (or jurisdictions) who may meet in a place 
 where there is no civiHsed government (§ 14). Under 
 what law (to put a modern example) are a Scot and 
 a French Canadian in the Khaibar Pass ? Modern 
 jurisprudence can in most cases lay hold of some 
 circumstance to obtain a working answer. But the 
 topic may not be pursued here. Hobbes is met with 
 flat contradiction (though not explicitly, for the 
 reasons already given) at the earliest possible point. 
 All men are equal by nature in the sense that no 
 
88 ESSAYS IN THE LAW 
 
 one man tas an original claim on any other's political 
 obedience ; not in any other sense, and so far we 
 are at one with Hobbes. Every man is entitled and 
 bound to preserve the existence which God has given 
 him. But (contrary to Hobbes) he is no less bound 
 to preserve other men, being his fellow creatures and 
 fellow servants, " when his own preservation comes 
 not in competition." This amounts to saying that 
 the problem is not to account for the existence of 
 society, but to ascertain its best or normal mode 
 of existence. I should be the first to admit that 
 Locke's way of saying it is both less frank and less 
 sound than Aristotle's. As against the opponents 
 he had to reckon with, it was effective and ingenious, 
 being so framed that no one who accepted the 
 authority of Scripture could well traverse it without 
 manifest risk of impiety. Hence every man's natural 
 power over others is already not arbitrary, as Hobbes 
 would have it, but quasi-judicial. Every man has 
 natural judicial and executive power until such powers 
 are regularly constituted.^ Hence, again, the law of 
 nature authorises all necessary acts of self-defence ; 
 and this, even under the rule of settled law, is the 
 only ground for the jurisdiction of any government 
 over resident aliens : a curious opinion which seems 
 to be peculiar to Locke, and gratuitous ; for one 
 does not see why the theory of submission by tacit 
 
 ^ There ia a strange verbal parallel in that strangest of mediaeval 
 vagaries the Mirror of Justices, the work, as I conjecture, of some eccentric 
 foreign clerk settled in England, whose authorship and purpose are still 
 mysterious. " Ordinary jurisdiction has every one who is not deprived of 
 it by sin (!), for every one may judge his neighbour according to the holy 
 rules of right." Book IV. chap. ii. 
 
m LOCKE'S THEOEY OF THE STATE 89 
 
 consent, on whicli Locke has to rely later, is less 
 applicable to temporary than to permanent allegiance. 
 This doctrine of the executive power is doubtless 
 open, says Locke, to the objection that it makes 
 every man a judge in his own cause. That is so, 
 and the use of civil government is to remedy such 
 inconvenience. But absolute monarchy fails just in 
 this respect, for the absolute monarch so dear to 
 Hobbes and Filmer remains in a state of nature with 
 respect to his own subjects, and therefore judge in 
 his own cause.^ 
 
 Further, there is a " plain difference between the 
 state of Nature, and the state of War, which however 
 some men have confounded " : for " men living 
 together according to reason, without a common 
 superior on earth with authority to judge between 
 them " may live in peace if they will, and such is 
 their will so long as they are reasonable. " Want of 
 a common judge with authority puts all men in 
 a state of nature " ; but it is only some act of 
 aggression, " force without right upon a man's 
 person," that makes a state of war. Political 
 authority is instituted to avoid the risk of a state 
 of war, not to put an end to a state of war necessarily 
 existing. In short, in the state of nature there may 
 be peace, though a precarious peace. This is, of 
 course, intended as a mortal stroke against Hobbes's 
 theory, and implicitly denies his position that the 
 worst of governments is always more tolerable than 
 the state of nature. Slavery is the result of conquest 
 
 ^ This argument is developed in chap. vii. 
 
90 ESSAYS IN THE LAW 
 
 in a state of war ; and freedom is not the absence of 
 all rule, but "is to have a standing rule to live by " 
 as opposed to being subject to an arbitrary power 
 like a conqueror's. Not that even a conqueror's 
 power is unlimited of right ; for Locke argues in a 
 later chapter, the connexion of which with his main 
 purpose is not made very clear, that a conqueror 
 does not acquire general dominion over the property 
 of the conquered, but is entitled at most to a charge 
 upon it for an indemnity. 
 
 Locke thinks it prudent to establish a natural 
 right of property (chap, v.) antecedent to political 
 institutions. His solution of the problem is that 
 appropriation is the reward of labour. A man 
 acquires a right in severalty to that which " he hath 
 mixed his labour with." The preceding assumption 
 that " every man has a property in his own person " 
 appeared safe and easy to Locke, but it is certainly 
 not good law, and was expressly contradicted by 
 Ulpian (" dominus membrorum suorum nemo 
 videtur ").^ The rights of every man to personal 
 safety, reputation, and so forth, are not marketable 
 or transferable, and are wholly distinct in kind from 
 rights of property. Locke's attempt to make an 
 extended conception of Occupation bear the whole 
 burden of Property was eminently that of an ingenious 
 layman. It is far from obvious, assuming Locke's 
 premisses, how any one can claim the sanction of 
 the law of nature for appropriating more than is 
 necessary to support himself and his family. Locke 
 
 1 D. 9. 2. ad 1. Ac[uil. 13, pr. 
 
LOCKE'S THEORY OF THE STATE 91 
 
 sees the difficulty, but cannot be said to remove it. 
 This economic digression, however, is now of little 
 interest. It is explained by Locke's anxiety to set 
 up as many barriers as possible against arbitrary 
 interference on the part of the State. He seems even 
 to ignore the doctrine of Eminent Domain, of which 
 he must have heard. We cannot suppose that he 
 would have actually denied the moral right of the 
 State to take private property for public purposes 
 on payment of just compensation, but he may have 
 thought it so liable to abuse as to be best kept in the 
 background. 
 
 Property cannot be made secure by natural right 
 alone, and for the better securing of their properties 
 men have entered into civil society. The will of the 
 body politic, when formed, is determined by the will 
 of the majority, and of a bare majority if there be no 
 different express agreement. For this Locke does not 
 give any reason but the necessity of the case ; it is 
 certain that much worse ones have been given. As 
 a matter of fact, we now know that a majority vote 
 has not been generally recognised in archaic societies ; 
 the difficulty of obtaining nominal unanimity was 
 overcome (as in special cases it still has to be) by 
 various methods, including varying elements of force 
 and fiction. This does not apply to the original 
 agreement to form a society, which is assumed to be 
 unanimous, and includes only the actual parties to 
 it. Any one who stands out may go his ways and 
 provide for himself elsewhere. It would seem that 
 the community is entitled to enforce his departure ; 
 
92 ESSAYS IN THE LAW 
 
 it is certain, on Locke's principles, that it has not the 
 right to detain him against his will. Could he agree 
 to stay in an inferior capacity like that of a resident 
 alien ? But it is needless to pursue the auxiliary 
 fictions which might be devised. A body politic, 
 then, is formed by consent ; the essential term of 
 the agreement is that every member gives up his 
 natural judicial and executive power to the com- 
 mimity (not, as Hobbes maintains, to an irresponsible 
 sovereign) ; and this consent is renewed, tacitly if 
 not expressly, in the person of every new member ; 
 for one cannot accept the benefit of a settled govern- 
 ment except on those terms on which it is offered. 
 Locke is bold. to assert that " a child is born a subject 
 of no country or government," and may choose his 
 allegiance for himself at the age of discretion : this is 
 another opinion which no modern lawyer will accept, 
 least of all a continental one. It is however necessary 
 to Locke's theory, and is one of the many details 
 in which his individualism, and every scheme of 
 individualism, breaks down. He guards himself to 
 a certain extent by adding that a man does not 
 make himself a member of an existing commonweal 
 merely by accepting the protection of its government. 
 Nothing short of " positive engagement and express 
 promise and compact " will confer citizen'ship. 
 
 As to the historical objection for want of proof 
 that governments were in fact originally founded by 
 consent, Locke answers, first that historical evidence 
 of what men did before the begitming of history is 
 not to be expected, and secondly that examples of 
 
m LOCKE'S THEORY OF THE STATE 93 
 
 states being founded by consent, such as Rome and 
 Venice, are not wanting. More recent and more 
 striking examples might have been drawn from the 
 settlement of New England, but the fact that the 
 colonists remained and professed to remain subjects 
 of the king of England would have given too much of 
 a handle for controversy ; not to mention that the 
 Pilgrim Fathers, whose deliberate constitution of 
 themselves into a body politic is on record, were not 
 at all like primitive or prehistoric men. This last 
 consideration, however, would have had no weight 
 among seventeenth-century disputants. The general 
 prevalence of monarchy in early times is admitted as 
 a fact, but not admitted to be any argument against 
 the origin of government in consent. Why should 
 not the consent and intention of the founders have 
 followed the precedent set by the existing usage of 
 families ? We may suppose if we like that " a family 
 by degrees grew into a commonwealth, and the 
 fatherly authority being continued on to the elder 
 son, every one in his turn growing up under it tacitly 
 submitted to it, and the easiness and equality of it 
 not offending any one, every one acquiesced, till 
 time seemed to have confirmed it and settled a right 
 of succession by prescription " (§110). This is of 
 some interest as showing exactly how near Locke could 
 come to a historical point of view. 
 
 Summing up his argument (in chaps, vii. and viii. ; 
 I have not closely followed the order, as it is some- 
 what clumsy to a modern reader) Locke states (chap, 
 ix.) the reasons which move men to restrict their 
 
94 ESSAYS IN THE LAW 
 
 natural riglits by mutual agreement, and unite into 
 common wealths " for the mutual preservation of 
 their lives, liberties, and estates, which I call by the 
 general name, Property." In the state of nature 
 this cannot be assured. The defects of merely natural 
 society are — 
 
 1. Want of established and known law. " For 
 tho the Law of Nature be plain and intelligible to all 
 rational Creatures ; yet Men being biassed by their 
 Interest, as well as ignorant for want of Study of 
 it, are not apt to allow of it as a Law binding to 
 them, in the application of it to their particular 
 Cases." 
 
 2. The want of " a known and indifierent Judge." 
 
 3. Power to execute sentences ; for though every 
 man is, in default of positive law, " both Judge and 
 Executioner of the Law of Nature," the ability is 
 often not proportionate to the right. 
 
 Locke, then, admits that mankind are " but in an 
 ill condition " when left to the state of nature ; he 
 is not really very far from Hobbes's well-known 
 description of the state of war. Some surrender of 
 natural right is necessary ; where Locke differs from 
 Hobbes is in holding that, as the surrender is for a 
 definite purpose, it is not unlimited, but conditional 
 on that purpose being fulfilled. Accordingly the 
 natural powers of self-preservation and punishment 
 are put " into the hands of the Society " not absolutely 
 but "to be so far disposed of by the Legislative, as 
 the good of the Society shall require " ; and the 
 power of the Commonwealth or its legislative organ 
 
LOCKE'S THEORY OF THE STATE 95 
 
 " can never be supposed to extend farther than the 
 Common Good." Whatever be the form of govern- 
 ment, it must be administered according to known 
 law, and " directed to no other End, but the Peace, 
 Safety, and publick Good of the People." Towards 
 the end of the Essay (chap, xviii. " Of Tyranny ") 
 Locke cites an unexpected witness, no other than 
 King James I., in support of this fundamental position. 
 
 The legislative power, once constituted by consent, 
 is the supreme power in the Commonwealth, but not 
 arbitrary (chap. xi.). We find the reason of its 
 supremacy given very shortly in a later passage 
 (§ 150) : " what can give laws to another must 
 needs be superior to him." But the legislative 
 authority is bound by its trust and by the law of 
 nature to govern by established laws, to act in good 
 faith for the common advantage, not to raise taxes 
 without the consent of the people by themselves or 
 their deputies, and not to transfer its power of making 
 laws (being only a delegated power) to any other 
 hands. 
 
 This is the most meagre and least satisfying part 
 of Locke's work. He does not seem to conceive the 
 possibility of a legislature having powers limited by 
 express convention but plenary within those limits ; 
 nor does he consider at all the partial exercise of 
 legislative power by bodies having a merely delegated 
 authority. He could not be expected to anticipate 
 the constitutions of self-governing colonies, but he 
 must have known that the University of Oxford 
 and his own House had statutes : and he must have 
 
96 ESSAYS IN THE LAW 
 
 desired to see the latter, at any rate, better secured 
 from arbitrary interference than they had been in 
 his own case. Yet he does make a very apt reference, 
 in distinguishing absolute from arbitrary power, to 
 the example of military discipline, where the officer 
 may have power of life and death over the soldier, but 
 cannot " dispose of one farthing of that soldier's 
 estate, or seize one jot of his goods." Neither does 
 Locke touch at all on what is now called constitutional 
 amendment, except negatively. He seems to assume 
 that nothing of the kind can be done, in any form 
 of government, without express provision for that 
 purpose. What makes the omission of argument 
 on this point the more remarkable is that Sir Thomas 
 Smith, writing a century and a quarter earlier, had 
 enounced the rmquaUfied sovereignty of Parhament 
 in terms so full and explicit that Blackstone, after 
 the lapse of just two centuries, could add nothing to 
 them ; while on the other hand the necessity of un- 
 alterable " fimdamentals " in any scheme of govern- 
 ment had been much discussed under the Common- 
 wealth, and maintained by Cromwell himself among 
 others. Sir Thomas Smith's Commonwealth of Eng- 
 land (at last properly edited since this paper was 
 first published ^) was more than once reprinted in the 
 seventeenth century, and one can hardly suppose 
 Locke to have been unacquainted with it. 
 
 In fact there was in Locke's time respectable 
 
 ^ De Eepublica Anglorum-, a discourse on the Commonwealth of England 
 by Sir Thomas Smith, ed. L. Alston with a preface by F. W. Maitlaud. 
 Cambridge, 1906. 
 
LOCKE'S THEORY OF THE STATE 97 
 
 authority for three different theories of the supreme 
 power in England. The King was absolute, accord- 
 ing to the ultra-royalists and Hobbes : Locke de- 
 moUshed this contention once for all, whatever we 
 may think of his constructive work. Parliament, or 
 the King in Parliament, was absolute according to 
 Sir Thomas Smith and the practice of the Tudor 
 reigns : this view was accepted by Blackstone and 
 has been the only tenable one among English lawyers 
 ever since. According to a third doctrine prevalent 
 among students of the Common Law down to the 
 early part of the eighteenth century, there are bounds 
 set by natural justice or " common right " even to 
 what the King in Parliament can do ; that is to say, 
 the judges ought to disregard an Act of Parliament 
 if it is manifestly contrary to natural justice, and 
 perhaps if it attempts to subvert the foundations of 
 the constitution ; for example, if it purported to 
 abolish the Monarchy or the House of Commons. 
 Locke's opinion is in substance a less technical 
 version of this last ; and it is worth while to observe 
 that existing legal authorities were in his favour. 
 Sir Thomas Smith, whose opinion ultimately prevailed, 
 was not a common lawyer but a civilian. 
 
 Locke touches on the separation of legislative 
 from executive power, which was to become a con- 
 stitutional dogma for his eighteenth-century followers ; 
 he gives only the practical reason that there is no 
 need for the legislative to be always in being, but 
 executive power for both domestic and foreign 
 affairs must be constantly ready for action. The 
 
 H 
 
98 ESSAYS IN THE LAW 
 
 foreign department of government is distinguislied by 
 tte not very happy epithet of " federative," wMcli 
 was not adopted, so far as I know, by any one. 
 
 We have now seen the whole of Locke's principles 
 of polity. The last seven chapters of the Essay 
 are a justification in detail, but by way of elaborate 
 allusion, of their application to English afiairs in 
 the Whig theory of the Constitution, and in particular 
 of the Revolution of 1688. Power being entrusted to 
 rulers only on condition, that condition is enforceable 
 at need, whatever be the legal forms of government : 
 " there remains still in the People a supreme power 
 to remove or alter the Legislative, when they find 
 the Legislative act contrary to the Trust reposed in 
 them." In this sense the Community is supreme, 
 " but not as considered under any form of govern- 
 ment, because the power of the people can never 
 take place till the government be dissolved." In 
 other words, the ultimate reserved power is extra- 
 legal and superior to the positive forms of the 
 Constitution. Blackstone, whose criticism of Locke 
 is in the main intelligent and fair, does not do him 
 complete justice on this point. In a constitutional 
 Monarchy the " single Person " at the head of the 
 Executive may " in a very tolerable sense " be called 
 supreme ; and he is entitled to personal allegiance 
 not " as supreme legislator, but as supreme executor 
 of the law, made by a joint power of him with others." 
 The " power of assembling and dismissing the 
 Legislative " may be vested in the Executive by the 
 Constitution, but, like all governmental powers, it is 
 
LOCKE'S THEORY OF THE STATE 99 
 
 held in trust for the public, and abuse of it may- 
 justify the people in recourse to their ultimate rights. 
 On the other hand, Locke suggests that the representa- 
 tion of the people in the Legislative may perhaps be 
 amended at the discretion of the Executive, provided 
 that such action is taken in good faith. Parliament- 
 ary reform by Order in Council was not so obviously 
 remote from practical politics two centuries ago as 
 it is now ; but what English princes down to Elizabeth 
 had done iu the way of creating new boroughs was 
 not of encouraging example ; and I do not know that 
 Locke's suggestion was taken seriously by any one. 
 The failure of Temple's plan to establish an efficient 
 and independent Privy Council had in truth made it 
 impossible beforehand. It is an important question, 
 but a question of modern politics and far outside 
 Locke's field of view, whether the latent capacities 
 of the Privy Council may not yet be developed for 
 the purposes of co-ordinating the resources of the 
 Empire and giving the self-governiag colonies an 
 efiective share — all the more effective for not being 
 too rigidly defined — in the handling of affairs of 
 common interest. 
 
 Prerogative is identified by Locke with executive 
 discretion, including some (he avoids saying how 
 much) extraordinary discretion in emergencies ; tem- 
 pered, like legislative power, by the possibility of for- 
 feiture. Selden's way with the supposed mysteries of 
 prerogative^ was more straightforward and profitable ; 
 but Locke wanted to conciliate moderate royalists. 
 
 1 Table Talk, s.v. 
 
100 ESSAYS IN THE LAW 
 
 It is obvious that Locke's position as to the 
 reserved power of dissolving government is not form- 
 ally unassailable. A Hobbist would say that a 
 political power " not as considered under any form 
 of government " is a contradiction in terms, and is 
 not only extra-legal but anarchical. Dissolve exist- 
 ing government, under whatever pretence, and you 
 are remitted to the state of war which we set out 
 to avoid at all costs. Locke's reply is iadicated later 
 (§§ 224, 225). Its efiect is that neither Hobbes's nor 
 any other dialectic will make men tolerate an iatoler- 
 ably bad government. In extremity they will act 
 on the belief that institutions perverted to ends other 
 than the public good " are so far from being better, 
 that they are much worse, than the state of Nature, 
 or pure Anarchy." To this no further answer seems 
 possible. Nowadays we should all agree with Locke 
 as against Hobbes that government is the instrument 
 and not the creator of society. We should also have 
 something to say of the force of custom as a fly-wheel 
 in the social machine, steadying and maintaining the 
 common course of affairs notwithstanding technical 
 or even substantial abeyance of legality. But of this 
 Hobbes takes no account at all, and Locke only just 
 touches upon it (" People are not so easily got out of 
 their old Forms, as some are apt to suggest," § 223). 
 The final chapter " Of the Dissolution of Govern- 
 ment " undertakes to show, but still under a 
 transparent disguise of verbal generality, that the 
 conduct of James II. was in fact such a breach of 
 " the fundamental Appointment of the Society " as 
 
LOCKE'S THEORY OF THE STATE' 101 > 
 
 justified the people in exercising their ultimate right 
 of self-preservation. It does not seem useful tO" 
 follow Locke through the details of his propositions, 
 as nothing short of a minute historical commentary 
 would illustrate them to any material extent. 
 
 The subsequent influence of Locke's Essay may 
 be traced, as the President of Corpus ^ has hinted, 
 not only throughout the formal political philosophy 
 of the eighteenth century, but in the doctrine received 
 among English constitutional lawyers, and in the 
 principles enounced by the promoters of American 
 independence and the conductors of the French 
 Revolution in its early stages. Blackstone substan- 
 tially followed Locke, though he borrowed some 
 ornamental phrases, not to be taken too seriously, 
 from continental writers. He was prudent enough, 
 indeed, to repudiate the assumption of mankind 
 having actually lived in a state of nature and 
 proceeded to form society by a " convention of 
 individuals " ; ^ and, writing as a lawyer, he was 
 naturally more anxious than Locke to vindicate the 
 Revolution settlement as not only justifiable but 
 legal. It is none the less true that Bentham, when 
 he sounded the note of destructive criticism in his 
 " Fragment on Government," was really attacking 
 Locke's theory of the State through Blackstone. 
 Again, Blackstone's Commentaries were a vehicle of 
 Locke's doctrine (though not the only one) to a 
 
 ^ T. W. Fowler, living when this paper was written. 
 
 2 Comm. i. 47 ; as to the ultimate remedy of dissolving government, 
 ib. 162 ; Blackstone seems to have thought " theoretical writers " a term 
 peculiarly apt to include Locke ; as to the Convention of 1688, ib. 152. 
 
102 ESSAYS IN THE LAW 
 
 numerous and public - spirited audience in the 
 American colonies ; and that doctrine was at the 
 foundation of the several Bills of Eights of the 
 American States, among which Virginia gave the 
 first example, and of the Declaration of Independence 
 itself. More than this, it has been shown by modern 
 American scholars that these instruments became 
 well known in France, and served as precedents for 
 the Declaration of the Rights of Man.^ On the whole 
 it seems that Locke had as much to do as Rousseau 
 with the Principles of 1789, or more. The fatal 
 domination of Rousseau's ideas belongs to a later 
 stage. It would be idle to consider what Locke 
 himself would have thought of his latest spiritual 
 posterity. 
 
 APPENDIX : 
 THE SOCIAL CONTRACT IN HOBBES AND LOCKE ^ 
 
 From very early times we find in various forms the notion 
 that all government and society depend in some sense on 
 the consent of the governed. In the fragments of Cicero's 
 treatise on the Repubhc (better, in Enghsh, Commonwealth) 
 there is a definition which had great authority iu the Middle 
 Ages : 
 
 Populum autem non omnem coetum multitudinis sed coetum 
 iuris consensu et utilitatis communione sociatum esse. 
 
 Not every multitude of men gathered together is a nation, 
 but only such as have agreed to live by common lawful rule for 
 the common advantage. 
 
 ' See Parts iii. and iv. of Schergcr, The. Evolution of Modern Liberty. 
 ' Summary of an University Extension lecture delivered at Oxford iu 
 1907 ; published in Journ. Soc. Comp. Legist., 1908, p. 107. 
 
in APPENDIX 103 
 
 Augustine refused to accept this on the ground that there 
 could be no true law or justice under a heathen government ; 
 but he seems to have been singular in his dissent.^ Isidore 
 of Seville, in the early seventh century, substantially copied 
 the Ciceronian definition, and it was generally accepted. 
 
 But it was a long time before any one attempted to work 
 out a definite doctrine ; indeed it was not possible before 
 the twelfth century, when the revival of learning sometimes 
 called the lesser Eenaissance furnished the materials, and a 
 motive was given by the problem, now becoming acute, of the 
 relations between Church and State. At the time of the later 
 Renaissance in the sixteenth century the problems were more 
 acute and much more complex, because (1) practically no 
 one could identify the State with the Holy Roman Empire : 
 (2) the Reformers, still zealous for ecclesiastical authority, 
 repudiated the authority of the Roman church. Thus, at 
 the date of Hobbes's birth (1588) experiments had been 
 made by reforming and anti-reforming publicists with almost 
 every possible speculative combination. 
 Several questions present themselves : 
 Who are the contracting parties ? on what do they agree ? 
 how is the agreement binding ? what was their condition 
 before they agreed 1 
 
 We have to note that there are two quite distinct types 
 of assumed contract. You may suppose an agreement to 
 form a poHtical society — a covenant of commonwealth, 
 factum unionis : this does not necessarily comprise the 
 definition of any form of government or the choice of 
 governors. You may also suppose an agreement to establish 
 a particular form of government and bear faith to it ; 
 and this may comprise a mutual agreement between rulers 
 and subjects. This is a covenant of allegiance, 'pactum 
 suhiectionis. 
 
 Strictly the term social contract is applicable only to the 
 former type : but it is impossible to consider the one apart 
 from the other either dogmatically or historically : the 
 distinction between them is important but easily overlooked. 
 
 ' Still, he allowed that obedience to governors was founded on some kind 
 of " pactum " ; see H. Rashdall in L.Q.R. xx. 324. 
 
104 ESSAYS IN THE LAW 
 
 It is possible to construct political theories requiring one 
 of these types of agreement, or both. 
 
 In the first half of the seventeenth century the prevailing 
 view was that there were two contracts — of society and of 
 allegiance : and that the latter was a contract of mutual 
 obligation, a bilateral contract as modern lawyers say, 
 between subjects and rulers — a contract therefore which either 
 prince or people might break. 
 
 Historical illustrations were not wanting for either kind 
 of contract. Formal compacts between kings and their 
 subjects were common enough in the Middle Ages, and long 
 before Magna Carta : ^ and in 1620, when Hobbes was stUl a 
 young man, the Pilgrim Fathers did " solemnly and mutually 
 covenant and combine " themselves " together into a civil 
 body politick " and " promise all due obedience and sub- 
 mission " to " such just and equal laws," etc., as they should 
 make. This of course throws no light on the origin of govern- 
 ment, as the subscribing parties were already members of a 
 civilised State and expressly described themselves as loyal 
 subjects of King James I. 
 
 But history did not count for very much with the sixteenth- 
 and seventeenth-century controversialists except as a store- 
 house of examples to be used in support of foregone conclusions. 
 They assumed ^ that contract was the most binding form of 
 obligation, and therefore it must be the proper foundation 
 of the Commonwealth, in analysis and in morals if not in 
 historical fact. 
 
 There was room for plenty of controversy within these 
 limits, especially as to the contract of allegiance. 
 
 Did the people surrender their power to the prince, or 
 only commit it to him on terms ? and on what terms, if any ? 
 
 Did the people delegate their authority to the prince, or 
 only appoint him as a ministerial officer ? 
 
 Did the people act as a corporate body, so that the agree- 
 ment was between the people of the one part and the king 
 (or other governor or governors) of the other part 1 
 
 1 Mr. A. J. Carlyle, Mediaeval Political Theory in the West, gives Frankish 
 examples of the ninth century. 
 ^ Cp. Locke, p. 87 above. 
 
APPENDIX 105 
 
 This last is a question which Hobbes met with the most 
 emphatic negative. 
 
 Comparison of Hobbes's and Locke's theoretical construc- 
 tion of the body poHtic wiU show that Hobbes's doctrine was 
 revolutionary, while Locke worked, in the main, on accepted 
 lines and was anxious to appear as following respectable 
 authority. This was perhaps one reason why Locke's in- 
 fluence on the political thought of the next century was so 
 much greater. Both Hobbes and Locke start from an 
 assumed " state of nature " — a political blank paper. In 
 this they are in no way singular. Observe that their pre- 
 decessors, being bound to accept the theological doctrine of 
 the fall of man, did not and could not treat the " state of 
 nature " as a golden age. It was the condition of men as 
 fallen, sinful, ignorant and ungoverned creatures. Any 
 virtues it had were negative. Hobbes and Locke, again, 
 are at one in considering the original multitude as a crowd 
 of unrelated individuals : and this is the fundamental fallacy 
 of the Social Contract in every form. 
 
 Hobbes's view of " mere nature " is pessimist enough to 
 satisfy any theologian. Without " a common power to 
 keep them all in awe " men " are in that condition which is 
 called war ; and such a war as is of every man against every 
 man " : and thus there is no security for any life worth 
 living. 1 
 
 The law of nature ^ — i.e. the rule of self-preservation 
 dictated by natural reason — dictates to man " to seek peace 
 and follow it," and for that purpose, among other things, to 
 keep faith. 
 
 But the law of nature has no adequate sanction.^ " Cove- 
 nants without the sword are but words, and of no strength to 
 
 1 Lev. i. 13. 
 
 '' Every one admitted that there was a law of nature consisting of rules 
 of conduct binding on men simply as rational beings, that it was ascertain- 
 able, and that when ascertained it was supreme : except that after the 
 Reformation some Protestant controversialists put the letter of Scripture 
 first under the name of the law of God. Why did they not say at once 
 that they knew as much about the law of nature as the Pope ? Because 
 they were still thinking medisevally, and wanted a show of superior 
 authority. 
 
 ' Lev. i. u. 17 init. 
 
106 ESSAYS IN THE LAW 
 
 secure a man at all." From what sort of agreement shall the 
 requisite " common power " be derived ? 
 
 The peculiar and fundamental point of Hobbes's construc- 
 tion is the form of his original contract. There is only one 
 contract : it is a contract of allegiance made not between 
 ruler and subjects, but between those only who agree to 
 transfer all their natural right to the ruler or rulers whom 
 they will henceforth obey. The sovereign thus instituted 
 (not necessarily one person, but in any case bearing the 
 person of the commonwealth) is not a party to the covenant. 
 He promises nothing to the subjects, and is boimd only 
 by the law of nature to exercise his power reasonably. 
 His right is derived not from any promise made to him, 
 but from the power conferred upon him. Hence there 
 can be no legal limitation of sovereignty, and to talk 
 of a limited or mixed government comes only of confused 
 thinking. 1 
 
 This single original contract must be classed as pactum 
 svbiectionis rather than pactum unionis. 
 
 Hobbes, of course, did not lay down this doctrine merely 
 for the pleasure of speculation. He had a very practical 
 object — to prove that Charles I. was of right and in fact an 
 absolute king. The detailed application is to be found in 
 Behemoth. Also the practical motive for his conclusions — 
 not only avowed but insisted on — was the conviction that 
 anarchy is necessarily the worst of evils, and any settled form 
 of government, however bad, much better than a revolution. 
 
 Locke, forty years later, started with a very different 
 practical purpose. Hobbes was the accuser of the Long 
 Parliament, Locke the defender of the Convention Parliament. 
 Hobbes argued strenuously for absolute power. Locke was 
 abundantly cautious to avoid making any statement or 
 admission which might lead to the inference of absolute 
 power anywhere. 
 
 ^ Hence, the sovereign not being bound by law, no one law can be more 
 fundamental than another. Quaere, what would Hobbes have made of the 
 constitution of the United States, or Switzerland, or Belgium ? The 
 attempts of modem followers of Hobbes to account for "rigid" constitu- 
 tions have been signal failures. 
 
ra APPENDIX 107 
 
 For Locke the state of nature is not a state of war until 
 there is actual hostility, but only a state in which peace is 
 not secure. The natural law of self-preservation includes a 
 moral duty to preserve the rest of mankind so far as possible 
 (Essay, ii. § 6). The natural power of every man has already 
 a moral and even judicial character. Locke is therefore not 
 an imqualified individualist hke Hobbes. 
 
 Civil society is formed by every man giving up his natural 
 power ; not to a sovereign but " into the hands of the 
 Community " or "to the publick." The authority so con- 
 ferred upon the society is granted only to be used for the 
 public good (vii. § 87). The next step is that the society, 
 beiug formed, establishes a government with legislative and 
 executive organs by the decision of the majority. The 
 right of the majority is founded simply on the necessity of 
 the case, because otherwise no collective action would be 
 possible (viii. § 96). 
 
 Locke does not say in terms whether he regards this as 
 involving a secondary contract or covenant of allegiance 
 {'pactum subiectionis), and it is difEcult to make out exactly 
 what his formal conception was. It would rather seem that 
 he purposely avoids committing himself. On the whole I 
 submit that he does postulate an auxiliary compact of all the 
 citizens to be bound by the government and laws which the 
 society shall establish (viii. § 122). This compact is not made 
 once for all, but is constantly renewed in the person of every 
 man who becomes a subject and member of the commonwealth 
 by promising allegiance. 
 
 Locke's view that permanent citizenship depends wholly 
 on the individual's consent — and even express consent — is 
 both unhistorical and contrary to all legal doctrine, as any 
 instructed modern reader will easily perceive. 
 
 The persons appointed to exercise legislative and executive 
 authority are of course parties to the contract as citizens. 
 But Locke does not affirm, and he seems by imphcation to 
 deny, the existence of any further special contract between 
 governors or officers of state, as such, and the common- 
 wealth : and this, although the supposed original contract 
 between king and people had been prominent in the debates 
 
108 ESSAYS IN THE LAW ^^ 
 
 on the conduct of King James II. and its consequences. 
 Not that Locke would deny that a king or any other holder 
 of public office was bound by any special oath of office or other 
 express undertaking given by him on his appointment and 
 admission. But in a general way he regards the powers of 
 government not as depending on contract, but as held under a 
 conditional grant, or in trust, from the Commonwealth, and 
 subject to forfeiture if the conditions are not observed. Here 
 we have to note the influence of ideas derived from the 
 English law of property. The fundamental condition is that 
 power so granted is to be used in good faith for the common 
 advantage. 
 
 Thus Locke may be said to prepare the way for Rousseau. 
 Hobbes knew of only one social contract, the covenant of 
 allegiance : civil society is constituted by allegiance to the 
 common power alone. Locke holds (as I read him) that there 
 is a primary covenant of commonwealth and also an auxiliary 
 covenant of allegiance : but the chosen rulers are not, as 
 rulers, parties to that second covenant. Rousseau, with 
 great ingenuity, quitted Locke's lines and framed a theory 
 which may almost be called an inversion of Hobbes's. He 
 abolished the covenant of allegiance altogether, as being 
 superfluous. There is only one contract, the covenant of 
 commonwealth : for the commonwealth which it creates is 
 sovereign, and whatever the commonwealth does is an act 
 of sovereignty needing no further confirmation. Thus 
 Hobbes recognises pactum subiectionis only ; Locke (seem- 
 ingly) both factum unionis and pactum svhiectionis ; Rousseau 
 pactum unionis only. 
 
 Hume had in fact refuted the Social Contract before 
 Rousseau's version of it became known : a version which 
 though more brilliant is no more sound than any other. 
 But this had apparently no effect in checking Rousseau's 
 influence in France : nor did it prevent Locke's political 
 theory, which had become part of the regular Whig tenets, 
 from being generally accepted in England till the end of 
 the eighteenth century. Blackstone, while obviously under 
 Locke's influence, repudiated, as matter of fact, both the 
 existence of a state of nature and the formation of society 
 
I" APPENDIX 109 
 
 by " any convention of individuals " ; thus putting himself 
 to some extent in the right line of criticism. It is very 
 doubtful however whether any of the expounders of a social 
 contract meant to commit themselves to maintaining that 
 states were normally, or ever, created in historical times 
 by an express act of agreement : Locke is interesting and 
 rather peculiar on this point. The doctrine of the Social 
 Contract in all its forms is analytical, not historical. 
 
 Hume showed that even as mere analysis the doctrine is 
 useless.^ It attempts to found political society on the duty 
 of keeping promises. But no reason can be given for keeping 
 the supposed promise of the social compact, or any promise, 
 which is not an equally good reason for maintaining political 
 society and obeying the law, promise or no promise. We 
 have to fall back on " the apparent interests and necessities 
 of human society." 
 
 Bentham was fully convinced by Hume's argument, and 
 adopted it in his Fragment on Government (1776). The 
 Social Contract, therefore, has no place in the politics of the 
 English utilitarian school. Burke in his Reflections on the 
 French Revolution and elsewhere treats it as an absurd and 
 contemptible fiction. I am not aware of any serious attempt 
 to revive it in later times. 
 
 '■ Essay xii., " Of the Original Contract." 
 
IV 
 
 GOVEENMENT BY COMMITTEES IN 
 ENGLAND ^ 
 
 Administration by committees has long been an 
 essential part of English, public life, and this is no 
 less true of all communities living under political 
 institutions directly or ultimately derived from those 
 of England. It probably tends to be true wherever 
 English political methods have been imitated or have 
 had any marked influence. No Englishman who takes 
 any part in afiairs can fail to acquire some practical 
 knowledge of conmiittee work. It is found in every 
 part of our social and political machinery. The 
 executive of the imperial government is a committee. 
 The final court of appeal from all jurisdictions in the 
 British Empire outside the United Kingdom is a 
 committee. The highest administrative function of 
 sovereignty, that of eminent domain, is exercised by 
 Parliament on the advice of committees acting in a 
 judicial manner. Most if not all of the innumerable 
 unoflS.cial associations founded for the most various 
 objects of public interest are directed by committees ; 
 
 ^ A paper read at the International Historical Congress at Berlin, 
 August 1908; published in L.Q.R. xxv. 53. 
 
 110 
 
IV GOVERNMENT BY COMMITTEES 111 
 
 in fact the appointment of a committee is generally the 
 first step of any number of English people gathered 
 together for any new common purpose. Even legis- 
 lative powers have been delegated to such bodies. 
 Our code of civil procedure (for we have one, 
 though we do not call it by that name) is the work 
 of a committee of the King's judges. I shall have a 
 word to say later about the manner in which the 
 committee system has made it possible for those 
 unique semi-ofl&cial bodies, corporations as every one 
 would call them till he discovers that they are not 
 incorporated, the four Inns of Court, to perform their 
 public functions in concert without abating anything 
 of their individual independence. Here I shall speak 
 from my own knowledge, and I may say at once that 
 this will be the only original element in the present 
 paper. For historical research, so far as I can judge, 
 there is no remaining need, and little or no room. 
 The records of Parliament and of the Privy Council 
 are open to the commonwealth of letters, and they 
 have been well sifted by leaders of historical and 
 political science. Living scholars have presented the 
 results with every possible advantage of both accurate 
 and elegant exposition. I have no claim, for example, 
 to add anything to the work of my learned friend 
 Sir William Anson, or, to mention the latest and some 
 of the best additions to our resources, Dr. Redhch, 
 of Vienna, and Mr. Lawrence Lowell, of Harvard. 
 My purpose is only to, exhibit the known, I might 
 even say the notorious, facts in a summary and 
 continuous view fitted to bring out the importance 
 
112 ESSAYS IN THE LAW 
 
 of this particular organ in the body politic of England. 
 Such a view may possibly be of some use to students 
 of comparative politics living under other systems ; 
 and, at any rate, I cannot doubt that materials for 
 fruitful comparison exist in abundance, though I 
 have not the time or means to attempt anything of 
 that kind myself. 
 
 We may do well to pause a moment on the word 
 " committee." Conformably to its etymology, the 
 primary notion involved is that of mandate. A 
 specified business is " committed " to a certain 
 person or persons to be dealt with according to 
 instructions and authority which may be wider or 
 narrower, expressed or implied. Originally " com- 
 mittee " was a singular noun, formed on the same 
 model as " bailee," " lessee," " trustee," and many 
 others, and, like them, having the stress on the 
 last syllable. It is still so pronounced so far as 
 it is applied to an individual : the " committee " of 
 a lunatic's person or estate (answering to the curator 
 of Continental systems) rhymes to " bailee," and 
 this is the only example current in modern usage 
 that I can call to mind. The corresponding active 
 noun would be " committor," like " bailor," 
 " vendor," etc., but I do not know that it was ever 
 a real word. Commonly, however, " committee " 
 is a noun of multitude, construed with a singular or 
 a plural verb at will, and the genius of English 
 pronunciation (often counteracted by a literary 
 influence or reasons of convenience, but always at 
 work in the language) has prevailed in throwing the 
 
IV GOVERNMENT BY COMMITTEES 113 
 
 stress backward, so that " committee," meaning a 
 number of persons, rhymes to " pity." 
 
 If we seek the meaning of this collective name in 
 living practice as it may be observed, we find that 
 the composition and the functions of committees 
 may vary without limit. Often a committee is 
 formed by selection out of a large body which appoints 
 it, and this is generally so in the case of committees 
 administering the affairs of an association ; but a 
 committee is not necessarily either selected or elective. 
 In cases where a committee is formed to conduct 
 enquiries or arrange executive details requiring expert 
 assistance, it is quite common to name certain persons 
 in the first instance " with power to add to their 
 number," thus making the body to a certain extent 
 self-propagating. An elective committee need not 
 represent one set of constituents only. Joint commit- 
 tees are found of great use for matters in which two 
 or more distinct bodies, it may be railway companies 
 or it may be wholly non-commercial institutions, 
 have common interests. On the greater scale of 
 world politics the Delegations of the Austro-Hungarian 
 Empire are the most conspicuous example. The 
 Hague Conference, again, is in the nature of a joint 
 committee, though a somewhat overgrown and un- 
 wieldy one. Then the powers of a committee may 
 be as plenary or as restricted as its creators choose 
 to make them by the terms of appointment. An 
 " executive " committee commonly has full freedom 
 of action in all the ordinary business of the society 
 which it represents. It is responsible to the general 
 
 I 
 
114 ESSAYS IN THE LAW 
 
 body, and may be displaced if it fails to give satis- 
 faction, the situation being, to compare small things 
 with great, not unlike that of the Cabinet with 
 regard to the House of Commons. In some cases 
 the constituent body does not retain any organic 
 unity of its own, and, having perished in giving birth 
 to the committee, leaves it quite independent. On 
 the other hand, a committee may be appointed with 
 strictly subordinate powers or for a strictly limited 
 and temporary purpose ; and many public or semi- 
 public bodies have standing committees which are 
 permanent, but whose functions are confined to the 
 administration of special departments. Again, a com- 
 mittee may be empowered to determine and execute, 
 or only to enquire and report for the information 
 of the constituent body or its executive authority. 
 Further, a committee with general powers may, and 
 often does, delegate the study of special matters and 
 the preparation of business connected with them to 
 one or more sub-committees, by whose reports its 
 final judgement and decision are informed. In non- 
 contentious matters the reports of sub-committees 
 are constantly received, adopted, and acted upon 
 without question. Thus we may find among com- 
 mittees every degree of authority and activity from 
 the highest to the least. Some committees encroach, 
 and leave a mere nominal supremacy in their 
 principals ; others are idle and, unless they wholly 
 perish for want of use, decline into mere names. 
 The lowest state of all is that of a so-called " General 
 Council " or " General Committee," such as commonly 
 
GOVERNMENT BY COMMITTEES 115 
 
 figures in the announcements and publications of the 
 larger political, semi-political, scientific, and philan- 
 thropic associations. The only assignable reason for 
 giving these incoherent and inorganic bodies the 
 epithet of " general " is that they are never known 
 to do anything in particular. As a rule they are not 
 even formally summoned to meet. In fact they are 
 nothing but lists of more or less well-known names 
 selected from the members and supporters of the 
 society for the purpose of making a moral impression 
 on the public. To use the language of mediaeval 
 law, they are the secta of the real managers : but a 
 suit " produced " only on paper. There is not much 
 strength in a multitude of counsellors who are not 
 consulted and committeemen to whom nothing is 
 committed, but the practice is common and accepted. 
 It seems to be accounted for by degeneration from the 
 type of constitution in which an executive committee 
 is associated with a large deliberative council, and 
 that council does meet and determine questions of 
 policy. Under such constitutions I have known the 
 council to overrule the proposals of the committee ; 
 on the other hand, I have also known it fall into a 
 condition of atrophy. 
 
 We find in yet another direction some approxima- 
 tion to the vanishing point of a committee's vitality. 
 There is a class of not infrequent cases where a real 
 executive committee contains an inactive element 
 of nominal members entitled to attend, but not 
 required or, in ordinary circumstances, much expected 
 to do so. In few committees, indeed, are all the 
 
116 ESSAYS IN THE LAW 
 
 members equally active ; but in some tbe non- 
 efiective ones are a considerable proportion, and tbey 
 may even be a majority. Most busy Englishmen of 
 tbe educated classes have at one time or another held 
 such a position somewhere. The existence of these 
 habitually passive members may be justified as 
 afiording some check on abuse of authority by a 
 bare majority or an active minority ; to be sure, a 
 rather precarious one, but better than none in those 
 cases where, for one reason or another, very few 
 persons can be found to attend regularly to the 
 business, and all the work is practically left in the 
 hands of the chairman and the secretary. 
 
 Such is the versatile power of this adnunistrative 
 instrument as it presents itself in the imsought and 
 rather unwilling experience of one English citizen, 
 whose first impulse, for the most part, is to say nolo 
 delegari. Its growth has been rendered much easier 
 by the conspicuous absence of governmental require- 
 ments and regulations in every part of our public 
 life outside affairs of State. We do not speak here 
 of bodies having essentially the nature of committees 
 which have become integral parts of defined legal 
 institutions, boards of directors in companies estab- 
 lished by special Acts of Parliament or formed under 
 the Companies Acts, and the like. At the same time 
 precedent and analogy may be found in EngUsh 
 public law, taken in the strictest sense, for almost 
 every one of the various applications of the committee 
 system in our conduct of unofficial matters. As I 
 have already hinted, there are two great committee- 
 
GOVEENMENT BY COMMITTEES 117 
 
 forming authorities in our Constitution, the King's 
 Council and Parliament. It is needless to remind 
 any student of EngUsh history that Council and 
 Parliament themselves were formed by processes of 
 specialising and reinforcement from the origiaal 
 Curia Regis. Again, the superior courts of Common 
 Law might fairly be described, in their earliest stage, 
 as expert committees of the Curia. Not till the 
 seventeenth century did the indiscreet ambition of 
 James I. provoke a positive declaration that the 
 powers of his judges, once conferred, were plenary 
 and not merely delegated, and the King could neither 
 sit in judgement in person nor divert the established 
 course of justice according to law. If the Curia Regis 
 can now be said to survive anywhere, it is in the 
 formal meetings of the Privy Council when the King 
 in Council receives the reasoned reports of the Judicial 
 Committee and makes them operative and final 
 judgements by issuing Orders in Council following 
 their Lordships' humble advice. It would not be 
 profitable, however, for the purpose in hand to go 
 back to the first beginnings. We may take the 
 Council and Parliament as they existed from the 
 latter Middle Ages onwards, and consider their 
 activities apart. ^ 
 
 There is some reason to believe that the Court of 
 Chancery, the source in later times of a branch of 
 
 ' Mr. L. 0. Pike has lately published a concise and excellent view of the 
 evolution of public offices and departments, illustrated by a graphical 
 chart ; the point of view is that of a special student of the pubhc records, 
 but this rather increases its interest and utiUty (The Public Records and 
 the Constitution, London, 1907 : see L.Q.R. xxiii. 337). [Mr. Pike died in 
 1915.] 
 
118 ESSAYS IN THE LAW 
 
 jurisprudence of the higliest general importance, and 
 yet so peculiar as to be little understood except by 
 its own special practitioners, was first a Committee 
 of tlie Council. One suspects, though I am not 
 acquainted with any proof, a time of transition when 
 the Chancellor administered the King's extraordinary 
 justice with the nominal aid of two or three mute 
 councillors, much as, about a century ago, the judicial 
 House of Lords might consist of Lord Eldon and two 
 or three lay peers who sat with him to make a quorum, 
 and voted as he advised them on questions of which 
 they did not understand the elements. However 
 that may be,^ the Court of Star Chamber (properly 
 the King's Council sitting in the Star Chamber) was 
 certainly a committee of the Council. It is interesting 
 to note that it was reinforced by the addition of learned 
 persons who were not necessarily members of the 
 Council for any other purpose. This practice, if it 
 needed confirmation, was confirmed by a well-known, 
 but still not fully understood, statute of Henry VII., 
 which it would be out of place to discuss here. I 
 will only say that we cannot expect to know more 
 about it than Bacon did, and Bacon's explanation 
 is by no means complete.^ There is no doubt that 
 when Parliament abolished the Star Chamber it put 
 some very bad history on its roll in the reasons 
 assigned by the preamble. It does not appear that 
 
 1 See now Prof. Baldwin's introduction to " Select Cases before the Kind's 
 Council," Selden Society, 1918 (in fact 1920), in the light of which I incline 
 to think the Chancellor's assessors, as long as he had any, were some of the 
 King's judges. 
 
 ^ See Anson, Law and Custom of the Constitution, 3rd ed. ii. 71-74. 
 
GOVERNMENT BY COMMITTEES 119 
 
 the Star Ciiamber was unpopular, or that its juris- 
 diction, though exercised through a procedure quite 
 different from that of the common-law courts, gave 
 rise to any serious complaint, until it was employed 
 as an instrument of vindictive prosecutions on merely 
 political grounds. But for this abuse, it might have 
 had a long and useful history ; it might well have 
 given us improvements in our criminal procedure for 
 which we have waited till the present day, and have 
 been the parent of an adequate court of criminal 
 appeal. As it was, the Star Chamber, together with 
 its offshoots and satellites, including not only the 
 Council of the North and its like, but the wholly 
 innocent Court of Requests, fell once for all in the 
 mighty fall of Charles I.'s personal government. 
 Its jurisdiction was original, and therefore not 
 analogous to the King's appellate authority over the 
 tribunals of his possessions beyond seas. 
 
 That authority grew, as it were, from a grain of 
 mustard seed. The King, as Duke of Normandy, 
 was bound to do justice to the Channel Islands, and 
 they were never included in the English system of 
 government and judicature. In that function, there- 
 fore, the King's Council was not superseded by the 
 English Courts, and its jurisdiction expanded, one 
 may say automatically, as the Crown acquired more 
 and more foreign territory.^ It now goes round the 
 world and covers British India, Australasia, and half 
 the North American continent. The modern Judicial 
 
 ' It is said that appeals to the Crown in Council from parts beyond seas 
 date only from temp. Eliz., see 2 Macq. 620, /i. 
 
120 ESSAYS IN THE LAW 
 
 Committee of tlie Privy Comicil is in form a statutory 
 creation of the nineteenth, century, but the type was 
 not new. As Mr. Pike has well said, " the machinery 
 by which we work has not undergone any radical 
 change of design." In this case Parliament regulated 
 and fortified in 1833 a jurisdiction which had long been 
 exercised through special and occasional committees ; 
 the post-Eeformation Court of Delegates which dealt 
 with ecclesiastical appeals after the Reformation, and 
 was also absorbed by the Judicial Committee, has a 
 separate history not material for us here. 
 
 The Judicial Committee, we need hardly say, is a 
 real and active committee ; but its habitual working 
 members are only a fraction of its nominal list. 
 Besides the nucleus of regular attendants, now 
 practically identical with the learned persons who 
 make up the judicial House of Lords,^ there are 
 some persons, such as former Indian judges, who are 
 summoned only when their special kinds of learning 
 and experience are required ; some who are available 
 at need, but as a rule occupied on other judicial or 
 State employments ; and some who are retired 
 veterans and retain their membership only as an 
 honorary distinction. The duty of seeing that the 
 Court is properly made up at each sitting according 
 to the nature of the business, colonial, Indian, or 
 ecclesiastical, is performed by the Registrar. Here 
 
 1 The House of Lords sitting judicially is not a committee or a select 
 body, but the whole House. It has been declared only within living memory 
 that peers not learned in the law, though they may sit, ought not to vote ; 
 and there is still no positive law to prevent them The Lords of Appeal as 
 constituted in our own time are in strictness only a reinforcement. 
 
GOVERNMENT BY COMMITTEES 121 
 
 we have something analogous to a feature which has 
 already been mentioned as characteristic of many 
 committees in unofficial life, the penumbra, so to 
 speak, of some members whose attendance is not 
 regular and not expected to be so, though they may 
 sometimes attend, and others who in practice are 
 incapable of attending at all. The Council still has 
 some judicial or quasi-judicial functions which are 
 not exercised by the Judicial Committee. When an 
 application for the grant of a royal charter of in- 
 corporation is opposed by persons or bodies who 
 conceive that the grant would be to their prejudice, 
 the matter is argued before a special and occasional 
 committee of the Privy Council, which, unlike the 
 Judicial Committee, does not give the reasons of its 
 decision. I have myself appeared as counsel before 
 such a committee. 
 
 Passing from judicial to administrative business, 
 we find that about the middle of the sixteenth century 
 the King's Council was distributed into committees, 
 as appears by a paper drawn up by King Edward VI. 
 himself ; the term used is " several commissions and 
 charges." ^ The first-named commission was " for 
 hearing of those suits which were wont to be brought 
 before the whole board " (referring to the King's 
 undefined prerogative of justice in the first instance 
 rather than to appellate jurisdiction ; the relation 
 of this committee to the Star Chamber is not clear) ; 
 the second " for calling of forfeits done against the 
 laws " and punishing breaches of proclamations (this 
 
 1 Burnet, Hist. Reformation, Oxford, 1865, v. 118. 
 
122 ESSAYS IN THE LAW 
 
 committee was obviously quite distinct from the Star 
 Chamber, and its functions appear rather iaquisitorial 
 than judicial) ; the third " for the State " — ^twenty in 
 number, just half of the whole body ; the Bang was 
 to be present at their weekly meetings " to hear the 
 debating of things of most importance," which would 
 cover all " matters of the State " not assigned to any 
 other commission. This may, perhaps, be regarded 
 as anticipating in some measure Sir William Temple's 
 plan of 1679, justly censured by Mr. Dicey on the 
 ground that his Council of thirty was " too large for 
 a Cabinet, too small for a Parliament." A fourth 
 committee was charged with the supervision of 
 judicial establishments and the revenues of justice, 
 and an existing commission for the collection of Crown 
 debts is mentioned. Some kind of small committee 
 for " the bulwarks," i.e. land fortification, is hinted 
 at rather than disclosed. It is specially provided 
 " that these councils sit apart." Under this scheme 
 little if anjrthing beyond merely formal action was 
 left for the Council as a whole to do. We are not 
 concerned here to examine for how long or with what 
 exactness Edward VI. 's instructions were carried out. 
 They are important as showing that the method of 
 dealing with business by devolution to committees 
 was already familiar. Neither is it possible within 
 the limits of this paper to enumerate the various 
 committees of the Privy Council estabhshed at various 
 later times for special and temporary purposes, of 
 which the traces may be found in political history ; 
 I doubt, indeed, whether it would for any purpose 
 
GOVEENMENT BY COMMITTEES 123 
 
 be wortli the labour. It is noticeable, as a matter 
 of form, that to this day every meeting of the Privy 
 Council at which the King is not present in person 
 is only " a Committee of their Lordships." ^ 
 
 In modern times a remarkable example of what I 
 have called the atrophy of committees has been 
 afforded by the transformation of certain committees 
 of the Privy Council into separate departments of 
 executive government. Here we find, or might have 
 lately found, a nominal Board including several 
 high ofiicers, such as the Secretaries of State ; but 
 " the Board is a phantom," ^ not meeting even 
 for ceremonial purposes, and the President of the 
 Board acts just like any Minister in sole charge of a 
 department. Thus the Board of Trade is, in its full 
 official style, though the shorter one has long been 
 authorised, " the Committee of the Privy Council 
 appointed for the consideration of matters relating 
 to Trade and Plantations." The Board of Education, 
 now transformed since 1899, was for sixty years the 
 "Committee of Council on Education." The Local 
 Government Board was doubtless framed more or less 
 on these models, but it dates only from 1871, and was 
 never a Committee of Council, though all its members 
 are in fact Privy Councillors ; it operates not through 
 Orders in Council, but by rules and orders issued 
 under its own seal. 
 
 On the other hand there is a Committee, commonly 
 described as being an informal committee of the 
 Privy Council, whose importance has greatly increased 
 
 1 Anson on the Constitution, ii. 99 {3rd ed., 1907). ^ Qp. cit. 194. 
 
124 ESSAYS IN THE LAW 
 
 within living memory, and is still increasing, namely, 
 the Cabinet. The description above mentioned is 
 warranted by the usage of eminent writers on the 
 law and practice of our Constitution ; and there is 
 no doubt that the Cabinet was in its earliest form a 
 confidential inner circle, though not a regular com- 
 mittee, of the Privy Coimcil.^ But Sir WiUiam Anson 
 points out that, as it now exists, it does not meet 
 as a Committee of the CouncU and is not summoned 
 by any of the Council's officers ; the summons comes 
 from the Prime Minister and purports to convene 
 " a meeting of His Majesty's servants." Every 
 member of the Cabinet is, in fact, a member of the 
 Privy Council, and the formal reason commonly 
 given for this is that the Privy Councillor's oath of 
 office provides the indispensable obfigation of secrecy ; 
 but it appears more likely that it is a mere case of 
 historical survival, for we shall see that as highly 
 confidential matters are handled elsewhere without 
 any like sanction. Thus it seems that, properly 
 speaking, the Cabinet is a committee of the leading 
 Parfiamentary ^ supporters of the Prime Minister's 
 party, being Privy Councillors. It is created in a 
 peculiar manner, as in form, so far as there is any 
 form, it is nominated by the Prime Minister ; there 
 is no such thing as an ex-qfficio member of the 
 Cabinet, though it is well understood that the holders 
 
 1 For the history see Anson, Law and Custom of tlie Constitution, ii. 76 
 sqq. {3rd ed., 1907). 
 
 ^ A member of the Cabinet is not disqualified by not having a seat in 
 either House, and Ministers of Cabinet rank have, in fact, been unseated 
 for a time while in the Cabinet, but normally every member of the Cabinet 
 is a member of one or the other House. 
 
GOVEENMENT BY COMMITTEES 125 
 
 of certain great ofl&ces of State must, in fact, be 
 included. Not less peculiar are the functions of the 
 Cabinet ; it is the real centre of executive power, 
 and the origin of almost all effective legislation, 
 but, having no place in the legal structure of the 
 Constitution, it has no means of doing anything in 
 its own name. Its resolutions take effect through the 
 individual Ministers in charge of the appropriate 
 departments, and, so far as executive acts are 
 required, in accordance with the procedure of each 
 department as established by custom or prescribed 
 by Act of Parliament. In many cases an Order in 
 Council approved by the King at a formal meeting of 
 the Privy Council is the instrument ; but the Cabinet 
 does not report to the King in Council ; the Sovereign 
 himself is the only person outside the Cabinet who 
 is entitled to be informed of its proceedings. For 
 the resulting action, of course. Ministers are individu- 
 ally and collectively responsible to Parliament. The 
 Cabinet, in recent times, has often appointed com- 
 mittees of its own number to consider departmental 
 questions, in conjunction, if necessary or desirable, 
 with Ministers who are not in the Cabinet, the legal 
 advisers of the Crown, or others.^ Some years ago 
 there was a Cabinet Committee on Defence : it was 
 freely rumoured that it hardly ever met ; in any case 
 very little came of its work, and it has been superseded 
 by the Imperial Defence Committee to be presently 
 mentioned, which is not a Committee of the Cabinet 
 or of any other existing body. While the power of 
 
 1 Anson, op. cit. 122. 
 
126 ESSAYS IN THE LAW ^ 
 
 the Cabinet has been largely increased by the demo- 
 cratic development of the parliamentary franchise 
 and the consequent higher efficiency of party 
 machinery within the last generation, its increasing 
 number, now risen to twenty, seems to exceed that 
 which is suitable for really confidential discussion, 
 and some good judges think that a sort of inner 
 conclave within the Cabinet itself must become not 
 only at times (as it has often been), but permanently, 
 the real directing power. In that event the true seat 
 of government will be more difficult than ever to 
 assign with any approach to verbal accuracy. 
 
 A remarkable addition to our consultative organs is 
 the Committee of Imperial Defence, dating from only 
 about the year 1904, and largely the work of Mr. A. J. 
 Balfour. Its object is to advise the Government 
 on such matters of preparation for war and strategic 
 problems as touch more than one department. In 
 some respects it is rather like and in others very 
 unlike the Cabinet. Besides having no executive 
 power in form, it has also no decisive power in fact ; 
 it is merely an advising body, containing, however, 
 so many of those whom it advises that but little 
 special communication between the Defence Commit- 
 tee and the Cabinet is required. For it " contains 
 the Prime Minister " (who summons it and presides) 
 " and . . . practically never meets without having 
 the assistance of the Secretary of State for War, the 
 First Lord of the Admiralty, the head of the Army 
 General Staff, the head of the Army Intelligence 
 Department, the First Sea Lord, and the head of the 
 
GOVERNMENT BY COMMITTEES 127 
 
 Naval Intelligence Department." ^ Still this Com- 
 mittee has not ex-officio members any more than the 
 Cabinet, and, strictly speaking, the Prime Minister 
 for the time being is the only permanent and in- 
 dispensable member. Unlike the Cabinet, however,^ 
 it has a Secretary who is a recognised and permanent 
 official, and its proceedings are recorded in minutes. 
 Again, the Prime Minister may invite not only 
 Ministers of other departments when their depart- 
 mental affairs are involved — including Ministers of 
 the King's dominions beyond seas — or the law 
 officers of the Crown when there are questions of 
 international law, but any person whatever whose 
 advice may in his opinion be useful ; such, at any 
 rate, is understood to be the view of Mr. Balfour, 
 whose authority on the functions of this Committee 
 seems to be the highest ; and any person so invited 
 is not a mere witness or assessor, but " a full member 
 of the Committee for a particular purpose." Although 
 the proceedings are highly confidential, it does not 
 appear that any special pledge of secrecy has been 
 found needful, and this tends to throw some doubt 
 on the usual explanation of the necessity for every 
 member of the Cabinet being a Privy Councillor. 
 The Committee does not interfere with exclusively 
 departmental details. Thus it would not discuss the 
 merits of oil fuel for ships from a marine engineer's 
 point of view, which is the business of the Admiralty, 
 
 1 A. J. Balfour in House of Commons, August 2, 1904, Pari. Deb., 4th s. 
 cxxxix. 619 ; and see cxlvi. 62, 156. 
 
 2 Since the institution of the War Cabinet this cannot be said without 
 qualification. See note at end. 
 
128 ESSAYS IN THE LAW 
 
 but it might well consider any probable modifications 
 of naval strategy to which extensive adoption of oil 
 fuel may be judged likely to lead. Some fears have 
 been expressed that the Defence Committee might 
 encroach on the executive authority of the depart- 
 ments and enable Ministers to escape responsibility ; 
 but they do not appear to be well founded, especially 
 when we consider that at least three responsible 
 Ministers, including the Prime Minister, are, in fact, 
 present at every meeting. 
 
 Both official and unofficial proposals have re- 
 peatedly been made for establishing a permanent 
 organ of communication and discussion in matters 
 of common interest between the several Grovernments 
 included in the British Empire. It has been thought 
 that the most natural and dignified way of doing 
 this would be through a new committee of the Privy 
 Council ; but there have been sentimental objections 
 (which I do not myself understand) to be set against 
 this preference, and the example of the Defence 
 Committee shows that there would be no difficulty 
 in making such a consultative body both independent 
 of the Privy Council and as elastic in its composition 
 as might be desired. The Defence Committee could 
 not, as one or two publicists have suggested, be 
 expanded into a Council of the Empire, for the 
 simple reason that it exists in order to perform 
 definite and specialised work which a body with more 
 general functions could not perform efficiently. 
 
 We have observed that the current description 
 of the Cabinet as a committee of the Privy Council 
 
IV GOVERNMENT BY COMMITTEES 129 
 
 is open to criticism. It has also been called a joint 
 committee of the two Houses of Parliament ; but 
 this is even less accurate, and for three reasons. A 
 Cabinet Minister must be a Privy Councillor, but he 
 may be without a seat in Parliament at the date of 
 his appointment, though it would not be practicable 
 for him to remain long without one. Again, the 
 Cabinet is not chosen by the Houses of Parliament 
 or either of them. At most we can say that the 
 Prime Minister, who chooses the Cabinet, is indirectly 
 chosen by the House of Commons. Lastly, " the 
 King's servants " must be members of the party which 
 commands a majority in the Commons, and if we 
 are to consider the relative importance of the 
 qualifications which have to concur, this is the most 
 vital of all. On the whole, then, the Cabinet is a 
 unique political formation ; and in passing from it 
 to the governmental functions of Parliamentary 
 committees properly so called, we are passing to a 
 quite different ground. It is not my intention, I 
 repeat, to describe the constitution or operations of 
 Parliamentary committees. There is nothing left to 
 be done in that behalf ; and, moreover. Continental 
 observers have not failed to note how the procedure 
 of the House of Commons has been the model, even 
 in minute detail, for that of lesser deliberative bodies. 
 Adding, for abundant caution, that this influence is 
 by no means confined to official bodies, I will make 
 one further suggestion. The practice by which the 
 House of Commons assumes a kind of allotropic form 
 when it leaves debate on principle for consideration 
 
 K 
 
130 ESSAYS IN THE LAW 
 
 of detail, resolving itself into a committee which 
 includes all the members, and resuming its former 
 character at will by putting the Speaker in the chair 
 again and reporting to itself, is not the least singular 
 part of our Parliamentary machinery, though its 
 convenience is acknowledged.^ It seems to me that 
 it may help to explain the facility with which in 
 unofficial life a number of persons in pursuit of some 
 common object will constitute themselves a committee 
 as the very first step — a " committee of the whole " 
 in fact — reserving any real process of election or 
 selection to be applied when they need an executive 
 authority. Beyond this, it will be strictly within the 
 limits of our subject to remind those who are not 
 specially versed in the history of the seventeenth 
 century — as the writer himself is not — that, in the 
 brief period of experiments which filled the time 
 between Charles I.'s final breach with the Long 
 Parliament and the Eestoration, the machinery of 
 committees was adapted to the direct conduct of 
 war and government, and on the whole with consider- 
 able success. This, with other inventions of the 
 kingless days, was of course abolished at the Restora- 
 tion, or rather ignored as never having had any 
 lawful being. But we shall see that a strong and 
 persistent memory of it was left. 
 
 ^ Committees of the whole House were developed out of standing com- 
 mittees by instructions that any member who chose to attend might have a 
 voice. See Redlich, ii. 209 (Eng. tr.), and Prof. I. Franklin Jameson, of 
 Brown University, Providence, E.I., on " The Origin of the Standing Com- 
 mittee System in American Legislative Bodies," Pol. Sci. Quart., 1894, 
 p. 245. The reality of the distiQOtion has been illustrated in our time by 
 the repression of a disorderly attempt to make a motion for adjournment 
 in Committee of the whole House. 
 
GOVERNMENT BY COMMITTEES 131 
 
 The King's declaration of war made it necessary 
 for the Parliamentary leaders to devise new forms 
 of executive government, for without the Bang's 
 personal consent and sanction at every turn the 
 old ones could not be worked. Committees were 
 the instruments of the new method ; they had long 
 been known in the practice of Parliament, but 
 now they were applied to various and unexpected 
 uses. A committee of safety, being a joint Com- 
 mittee of the two Houses, was appointed for the 
 general conduct of war and policy. After 1644, 
 when it was reconstituted, its executive powers 
 were comparable to those of a modern Cabinet.^ 
 Later, the Scottish alliance caused this to be trans- 
 formed into the " Committee of the two Kingdoms," 
 often called the Derby House Committee, from 
 its place of meeting ; after the execution of 
 Charles I. it was superseded by a body called the 
 Council of State (in foreign business rei publicae 
 Anglicae ordines) formed by a curious process of 
 nomination and selection, and not being designated 
 as a committee. This Body had committees of its 
 own. Other Parliamentary committees dealt with 
 special departments of the public service, mostly in 
 their financial aspect, from 1642 onwards. They 
 worked in concert with the Council of State, which 
 commanded a majority in the House of Commons, 
 and also with committees in every county represent- 
 ing the dominant party, and they had direct executive 
 functions ; thus for all practical purposes they were 
 
 1 Gardiner, Hist, of the Great Civil War, ed. 1897, i. 307. 
 
132 ESSAYS IN THE LAW 
 
 irresponsible and uncontrolled.^ We have no great 
 reason to be surprised when we find, in 1648, the 
 controversial and somewhat eccentric publicist 
 Clement Walker (a special enemy of the Independent 
 party) complaining bitterly that these Parliamentary 
 committees monopolised all government {The Mystery 
 of the two Juntos, p. 4). 
 
 Another ambitious aim of those Jmito men is their device 
 of referring all businesses of moment to Committees. For 
 the active speaking men by mutual agreement naming one 
 another of every Committee (or at least their confident 
 Ministers) do thereby forestall and intercept the businesses of 
 the House, and imder colour of examining and preparing 
 matters, they report them to the House with what glosses, 
 additions, detractions and advantages they please, whereby 
 the House (judging according to their report) oftentimes 
 misjudgeth, and if it be a business they are willing to smother, 
 the Committees have infinite artificial delays to put it off, 
 and keep it from hearing, or at least from reporting. By 
 this means the remaining part of the House are but Cyphers 
 to value, and Suffragans to ratify what is judged by the 
 said Committees. 
 
 This usurpation of theirs is much helped by keeping the 
 Doors of their Committee Rooms shut, and dispatching all 
 affairs privately and in the dark : whereas justice delights in 
 the light, and ought to be as public as the common air, it 
 being against its nature to be chambered up and kept from 
 the observation of eye and ear Witnesses. 
 
 And by their examining men against themselves contrary 
 to Magna Charta, they much enlarge their power.^ 
 
 Even more naturally we find, some time later, 
 that Clarendon, as Charles II. 's Chancellor, has 
 
 ' For a general account of these bodies see Preface to Calendar of State 
 Papers (Domestic), 1649-1650, ed. Mary Everett Green, 1875. No complete 
 one is possible, as there were many whose order books were not preserved. 
 
 ' Spelling modernised. 
 
GOVERNMENT BY COMMITTEES 133 
 
 misgivings about putting the Treasury in commission. 
 He thinks that commissioners are " fitted to execute 
 all offices according to the model of a commonwealth, 
 but not at all agreeable to a monarchy " [Life, sub 
 ann. 1665 and 1667). 
 
 Further, the tradition of the Commonwealth 
 committees appears to have continued part of the 
 common stock of educated society till the early part 
 of the nineteenth century. In 1818 Lady Susan 
 O'Brien (Fox-Strangways) wrote in a series of notes 
 on changes observed in her own time : — 
 
 Now since the French Kevolution the topic [politics] is 
 universal. No man of any degree but reads, studys the 
 newspapers, to form a creed for themselves. No ale-house 
 club but meets to descant on the conduct of the Eoyal Family, 
 or the Constitution. . . . Every parish has its committee to 
 arrange something or other. No committee but call them- 
 selves gentlemen, thank their chairman [the innocent vote of 
 thanks to the chairman which is the familiar conclusion of all 
 public meetings], and ape everything of this kind in their 
 superiors. At present (as once before) the kingdom is 
 governed by committees. The consequences may probably 
 be the same. {Life and Letters of Lady Sarah Lennox, Lond., 
 1904, p. 613.) 
 
 It is needless to point out that the consequences 
 feared by Lady Susan did not follow. The connexion 
 between the French Eevolution and the Local Govern- 
 ment Act which established parish councils late in the 
 nineteenth century is somewhat remote, but in any case 
 those bodies have not shown, so far as their life has 
 gone, any marked signs of revolutionary activity. 
 
 We have mentioned the Parliamentary Committee 
 of the Two Kingdoms. At this day one of the most 
 
134 ESSAYS IN THE LAW 
 
 important forms of committee work is that of joint 
 committees enabling independent bodies to work 
 together regularly. Now the legal profession in 
 England offers a striking example in the government 
 of the Bar not by two but by four distinct and formally 
 independent powers, the Inns of Court. As a member 
 of the Bench of Lincoln's Inn and of the Council of 
 Legal Education, I have to be familiar with the joint 
 action of the Inns as well as the internal affairs of 
 my own, and it may be of some little interest to make 
 use of this experience for the purpose of concrete 
 illustration. 
 
 The four Inns of Court in London are ancient 
 societies of advocates and students of the law. 
 Resembhng the colleges of our universities in many 
 ways, they differ from them in being " voluntary 
 societies " without any legal personality, and, what 
 is more in point for us now, not being constituent 
 elements of any larger body. They are allied but 
 not federated. Nothing corresponds to the quasi- 
 federal bonds of Oxford or Cambridge unless the 
 reserved supervising power of the King's judges, 
 never clearly defined and very seldom exercised, can 
 be said to do so. Common traditions and custom, 
 however, have kept the Inns as alike in type as one 
 Oxford or Cambridge college is to another. The form 
 of domestic government in each is a survival of 
 mediaeval republican oligarchy, the purest, I should 
 think, to be found in Europe ; for the Benchers 
 recruit themselves wholly by co-optation from the 
 barristers of the same Inn. Such a system is, of 
 
IV GOVEENMENT BY COMMITTEES 135 
 
 course, practicable only in a homogeneous community 
 and under the unformulated but effectual control 
 exercised by tlie professional esprit de corpse The 
 result is, I believe, a governing body quite as repre- 
 sentative as any scheme of election by the members 
 of the Inns could make it. Within the oligarchic 
 body so maintained we have a thoroughly democratic 
 temper, aptly symbolised in certain festive ceremonies. 
 If a Chancellor or Chief Justice has any special in- 
 fluence as a member of the Bench, it is by reason of 
 his personal qualities and not of his office. Indeed, 
 I am beginning to think that perfect democracy 
 (or it might be more accurate to say perfect isonomy) 
 is possible only within a happily constituted oligarchy. 
 Such, in very brief outline (for I must not be tempted 
 to digress farther), are the co-ordinate powers which 
 within the last half-century have found it necessary 
 to organise joint action without sacrificing their 
 independence. That, I may add, none of them 
 would do save under extreme compulsion. We have 
 nothing to learn about particularism in the Inns of 
 Court. I will add, likewise, to avoid any possible 
 misapprehension, that the " other branch of the 
 profession," the solicitors, have a separate organisa- 
 tion of their own in the Law Society, which, being of 
 modern origin, is incorporated, single, and in some 
 ways more efficient. Probably it was lucky for the 
 solicitors that the old " Inns of Chancery " had lost 
 their quasi-collegiate function, and for the most part 
 degenerated into mere dining clubs, before the Law 
 Society was born. 
 
136 ESSAYS IN THE LAW 
 
 About the middle of the nineteenth century there 
 arose a demand for a visible and uniform system of 
 qualification for practice at the Bar. Why and how 
 the ancient system had broken down after the 
 Restoration, and practically nothing was put in its 
 place for about a century and three-quarters, are 
 questions I cannot enter upon here. So it was that 
 in the year 1852, not after but before a Royal Com- 
 mission was charged to report on the Inns of Court, 
 those bodies appointed a joint committee to deal 
 with the legal education of their students. That 
 committee was and is the Council of Legal Education. 
 Nearly twenty-five years ago I served it as a teacher 
 in the Inns of Court ; now ^ I serve in it as one of the 
 members delegated by Lincoln's Inn. W^e are dele- 
 gates with limited powers, not a federal council. 
 The regulations we administer are made by the 
 authority of the four Inns, and cannot be altered 
 without the consent of all of them. The funds we 
 dispose of are contributed by the Inns individually 
 from year to year. There is nothing, in form, to 
 prevent any one Inn from destroying the whole 
 scheme by secession. But in fact we have lived to 
 see a good many changes in larger political constitu- 
 tions in every quarter of the world, and we show no 
 sign of instability. When we desire an amendment 
 in our regulations we report it to the four Inns, 
 and if the general sense of the Council is clear in 
 the matter the consent of the Inns is almost always 
 given. Within our prescribed limits we conduct the 
 
 1 [I.e. in 1908.] 
 
IV GOVERNMENT BY COMMITTEES 137 
 
 examinations wMch admit the successful candidates 
 to practise at the Bar, and provide instruction for all 
 students who choose to avail themselves of it. Our 
 ideals are not all exactly the same ; on some points, 
 if we discussed them, I believe I should be in a very 
 small minority. But we represent on the whole 
 what may be called the best average intelligence of 
 the English Bar, and no representative body can, 
 after all, do more. We know very well what is 
 practicable from day to day, and our work is done 
 with so little display or friction that few people 
 beyond those whom it immediately affects know 
 anything about it. Our names are to be found in 
 the semi-official " Law List," but we have no direct 
 communication with any outside authority, though 
 some of the Judges are members of the Council, not 
 as Judges, but as delegates of their respective Inns 
 of Court. 
 
 A somewhat analogous body is the Incorporated 
 Council of Law Reporting for England and Wales, 
 which I have served as Editor of the Law Reports 
 since 1895. Until 1865 the decisions of the superior 
 courts were reported in a number of separate publica- 
 tions conducted as publishers' undertakings. One or 
 two reporters were attached to each court and semi- 
 officially recognised by the Judges, but there was 
 no co-operation or common supervision. The bulk, 
 expense, and dilatory issue of these " authorised " 
 reports had become intolerable to the profession, 
 and a committee appointed by a general meeting of 
 the Bar recommended, after thorough discussion, 
 
138 ESSAYS m THE LAW iv 
 
 ttat a uniform series of reports should be undertaken 
 by a Council representing the Inns and the Law 
 Society. Their advice was acted on with remarkable 
 promptitude ; the Council was formed as a joint 
 committee of delegates ; the new method was at 
 work in the autumn of 1865, and since that time the 
 Law Reports have been regularly issued under the 
 Council's general direction, and their example has 
 been followed in Ireland and in many jurisdictions 
 beyond seas.^ Gray's Inn, the smallest of the Inns 
 of Court, held aloof for a time, even as Rhode Island 
 stood out from the United States, but not for long. 
 Nearly all the existing " authorised " reporters took 
 service with the Council, and in about two years the 
 old system was extinct. The Council of Law Report- 
 ing procured itself to be incorporated, but merely 
 as a matter of administrative convenience. It is, 
 if possible, even less of an official body than the 
 Council of Legal Education. Most valuable aid is 
 given by the Judges to the editor and reporters, but 
 the Law Reports have no monopoly and claim no 
 exclusive privileges. All I need say here of my own 
 experience is that I find the Council a good master, 
 and should be very sorry to have any more official 
 character attached to my post or those of my col- 
 leagues. Observe that I say colleagues, for we have 
 no hierarchical formalities. We are all comrades 
 working together for the benefit of our common 
 profession and learning, and I feel that my own share 
 
 ^ The first number of the Alberta [Canada] Law Reports comes to hand 
 as I am finishing this paper. 
 
GOVEENMENT BY COMMITTEES 139 
 
 in the work is successful just so far as I remember 
 tliat I am only primus inter pares. We are responsible 
 to the Council and to the Council only, though 
 professional criticism is, as it should be, free both 
 in public and in private, and often of great value. 
 Of official precedence or rank there is absolutely no 
 question, and I hope it may long continue so. There 
 is a partial exception to our non-official character in 
 the case of the reporters in the House of Lords, who 
 are appointed by the House itself and not by the 
 Council, but this makes very httle difierence in 
 practice. In this almost informal fashion the develop- 
 ment of the Common Law by judicial decisions, which 
 is as active and, I believe, as sound as ever, is recorded 
 both for present use and for posterity. These things 
 may seem strange. Some of them, possibly, may 
 seem hardly credible to some of our Continental 
 brethren. I can only vouch for their truth. 
 
 It may not be strictly in order to draw a civic 
 or political moral from facts which in a historical 
 congress ought to be treated in a purely historical 
 manner. But my attempt to do so will be so short 
 that at worst it can hardly offend. De minimis non 
 curat lex. Experience has shown, during quite three 
 centuries of English life, that committees are, on the 
 whole, the least cumbrous and the most flexible 
 organs of almost every sort of common business and 
 common interests. Like all human instruments, they 
 have their weak points and their besetting risks. If 
 it is too large, a committee may degenerate into 
 officialism ; if it is too small, it may be captured 
 
140 ESSAYS IN THE LAW rv 
 
 by a despot ; in the latter case the evil is less. For 
 in a society ruled by a small committee we can at 
 least know who is master, whereas under a large 
 committee, with fluctuating attendance and an inert 
 majority, this knowledge is often hardly attainable 
 except by those in the secretary's private confidence. 
 If the secretary himself does not know, which is a 
 possible though not frequent case, anarchy is not far 
 off. Industry, vigilance, and judgement are needful 
 in this as in other forms of civilised social action, if 
 institutions are to remain efficient for their purposes. 
 Nor is the part of tact and good offices to be forgotten, 
 especially by chairmen. An engine without steam 
 will not run at all, but it is no less true that without 
 oil it will run disastrously. 
 
 Note. — =Some time after this paper was first published the complicated 
 history of the growth of the Cabinet and its relations to the various 
 Committees of the Privy Council was fully discussed in the English 
 Historical Review by Jlr. Temperley, xxvii. 682, xxxi. 291, and Mr. 
 E. R. Turner, xxxi. 545. It will be clear to any one who consults 
 these valuable studies that there is nothing new in the process of a 
 small confidential committee being increased in number till it becomes 
 unmanageable, and its work being taken over by an inner conclave, 
 at first informal and unofficial, whose members come, in Bacon's 
 phrase, to sway all the business. It is not possible to add anything 
 here about the War Cabinet and other innovations brought about by 
 the exigencies of the late war, as to which see a parhamentary paper 
 of 1918, Cd. 9005. 
 
GIFTS OF CHATTELS WITHOUT DELIVEEYi 
 
 In Cochrane v. Moore, 25 Q.B. Div. 57, tlie learned 
 judgement of Fry and Bowen L.JJ. deals with a 
 question on which, there have been great differences 
 of opinion ; namely whether a voluntary gift, without 
 specialty and without delivery, of a chattel capable of 
 delivery, be sufficient to pass the property or not. On 
 a review of all the authorities, the Court of Appeal 
 came to the conclusion that it is not. Lord Esher con- 
 curring for a distinct but consistent reason of his own. 
 The result is to uphold the authority of Irons v. Small- 
 piece, 2 B. & Aid. 551, against later criticisms and de- 
 cisions which have not followed it. There seems to be 
 little room to doubt that this conclusion is correct. 
 It is not stated in the judgement of the Lords Justices 
 what is the precise effect as between the parties, or as 
 regards third persons, of a parol gift ; neither is it 
 denied that it may have some efiect short of passing 
 property. It may be worth while to point out that 
 such an effect is possible, and seems to be indicated by 
 some of the authorities cited. 
 
 On principle it would seem that where A, by word 
 
 J- Law Quarterly Review, vi. 446 (1890), 
 
142 ESSAYS IN THE LAW ^ 
 
 of mouth, purports to give B a certain cliattel, this 
 will have the efiect of a licence to B to take that 
 chattel peaceably wherever he may find it. For it 
 would not be reasonable for A to treat 5 as a trespasser 
 for acting upon A's expressed intention. The licence 
 is no doubt revocable until executed, and may be 
 revoked either by the communication to B, by word 
 or act, of ^'s will to that efiect, or by A's death (which 
 was the case of Irons v. Smallpiece), or perhaps by 
 ^'s becoming insane. If without any revocation the 
 licence is executed by B taking possession of the 
 chattel, then, it is submitted, the property is irre- 
 vocably transferred to B. There would be great and 
 obvious inconvenience in holding otherwise. 
 
 What is the position of A and B towards strangers 
 before B has acquired possession ? It seems to be 
 something like that of a bailor and a bailee at will. 
 B has an immediate right to possession, revocable 
 indeed at ^'s will, but sufficient to give him a right of 
 action against a stranger who takes the thing without 
 colour of right. Whether he could bring trespass as 
 well as trover may be doubtful. If his position can 
 be put as high as that of a vendee entitled to imme- 
 diate possession, trespass might well lie (cf. Sir R. S. 
 Wright in Pollock and Wright on Possession, p. 188). 
 And, as against a mere wrongdoer, there appears no 
 good reason why this should not be so. However, 
 trover at any rate would be maintainable, if A's licence 
 can be deemed equivalent, as against third persons, to 
 a right to possession. The difference could now be 
 material only in a prosecution for theft-. A, notj 
 
GIFTS WITHOUT DELIVEEY 143 
 
 having parted with, legal possession, and having a 
 right to possession which he can make exclusive at his 
 own will, is clearly entitled to bring either trover or 
 trespass. It seems a correct way of expressing the 
 result, though perhaps not the clearest way, to say 
 that A retains the general property until the posses- 
 sion is changed by -B's execution of his licence to take 
 the thing given, and that meanwhile B acquires an 
 immediate special property by the gift. Or, in the 
 words of the note in 2 Williams' Saunders, 90, " it 
 may still be held that a donee, by a parol gift, acquires 
 such a special property as to be able to maintain an 
 action against a mere wrongdoer, though the donor 
 may resume the thing given." 
 
 When we bear in mind that from the fourteenth to 
 the seventeenth century the word " property " was 
 constantly used without qualification where we should 
 now say " special property " or " right to possession," 
 we may find reason to think that the view now sug- 
 gested, and maintained by Sir E. V. Williams, is by no 
 means without authority, and will account for passages 
 in the authorities which are at first sight obscure. 
 Take first the dictum in Jenkins's Centuries, 3rd Cent., 
 Case 9, which the Lords Justices cite without either 
 approving or condemning it. "A gift of anything 
 without a consideration is good : but it is revocable 
 before the delivery to the donee of the thing given." 
 Here " good " can, by reason of the context, only 
 mean " good as against third persons," and, if read as 
 a somewhat elliptical statement of the doctrine above 
 proposed, the sentence becomes clear and consistent. 
 
144 ESSAYS IN THE LAW 
 
 Then, going back to the Year Book of Henry VII. (21 
 H. VII. 18, pi. 30), we find Rede J.^ saying, " If I 
 give to a man my cow or my horse, he may take the 
 one or the other at his election : and the cause is that 
 immediately by the gift the property is in him, and 
 that of the one or the other at his will." The Lords 
 Justices seem to think this wrong, and it clearly would 
 be so if the property ascribed to the donee were what 
 we now call general or absolute property. But if we 
 read property in the sense of right to possess, the 
 sense comes out exactly in accordance with what 
 has been suggested as being, on principle, the result 
 of a gift -without delivery. AVhat passes by the alter- 
 native gift is just the right to take the cow or the horse 
 at the donee's election. Questions might arise whether 
 his election could be finally determined in any other 
 way than by actually taking either the cow or the 
 horse, whether he would be a trespasser as to both if 
 he took both, and (if the gift were by deed) what would 
 be the result of his failing to take either within a 
 reasonable time. It is needless to consider these 
 points now, as my only purpose is to show that there 
 is no necessary confusion or error in the statement. 
 Farther back still, in 2 Ed. IV. 25, Laicon said in 
 argument, " Suppose I give to you my goods which are 
 at York, and before you are seised of them a stranger 
 takes them away, have you not a writ of trespass 
 against the stranger 1 Yes, sir, for by the gift at once 
 the property " — i.e. right to possession — " was in you, 
 
 1 Not the Attorney-General, as supposed in the judgement of the Lords 
 Justices as printed, 25 Q.B. Div. at p. 70. 
 
GIFTS WITHOUT DELIVEEY 145 
 
 and the possession by the writ is adjudged in you pre- 
 sently " — i.e. immediate right to possess is equivalent 
 in this case, for the purpose of suing a mere wrongdoer, 
 to possession itself. And to this the Court seem to 
 have agreed ; but they pointed out (quite rightly, as 
 will appear to the learned reader, if he cares to ex- 
 amine the book at large) that it would not support the 
 plea which Laicon had drawn in the case before them. 
 It is certainly possible, as the Lords Justices suggest, 
 that in these passages the gift is assumed to be by 
 deed ; but it does not seem at all necessary so to read 
 them. In the view here taken, it would have made no 
 difference to the points under discussion whether the 
 gift were by deed or not, and there would be no occa- 
 sion to advert to the distinction. In 7 Ed. IV. 20, pi. 
 21, it is noted, apparently as new law, that a gift of 
 goods by deed is effectual without delivery, and can be 
 avoided only by the donee disclaiming it in a Court of 
 record. 
 
 In the thirteenth century, on the other hand, a gift 
 even by deed was held to pass nothing without de- 
 livery ; though the mention of homage in the passages 
 cited from Bracton and Fleta show that the writers 
 were thinking chiefly if not exclusively of grants of 
 estates in land. But we know from Bracton that in 
 his time a sale of goods did not pass the property before 
 delivery. Bracton's law of sale is not Roman but 
 Germanic, though in this point the Roman law was the 
 same. And it is equally clear, as the Lords Justices 
 observe, that in speaking of gifts Bracton was not 
 copying Roman law, for he could not have overlooked 
 
146 ESSAYS IN THE LAW 
 
 the rule of the Institutes that a voluntary gift creates 
 even before delivery a perfect obligation between the 
 parties, though it does not pass the property. It may 
 be mentioned that the reference to this point (25 
 Q.B. Div. at p. 66), though quite correctly expressed in 
 conformity with the terms of the passage of Justinian's 
 Institutes which is referred to, is extremely concise ; 
 and a reader ignorant of Roman law might be led to 
 think that the effect of Justinian's legislation was to 
 make a voluntary gift without delivery transfer the 
 property itself. What he did was to make the gift 
 irrevocable, entitling the donee to call upon the donor 
 for delivery, but not conferring on him any real right 
 as against third persons. Thus the law of Justinian 
 is exactly the reverse of the common-law rule which, 
 as I submit, was laid down by Edward IV. 's judges, 
 and has not been overruled by any modern decision. 
 
 It will be observed that the discussion in Cochrane 
 V. Moore deals only with one of several possible cases 
 as regards the possession or custody of the thing given ; 
 namely that in which it is not already in the possession 
 or custody of the donee, or of any third person. The 
 other cases must now be considered. Let us first 
 suppose the donee himself to have the thing. If B 
 holds as bailee a chattel of A's, it seems obviously 
 required by common sense and convenience that, A 
 being minded to give the thing to B, the declaration 
 of ^'s will to that effect, communicated to B and 
 assented to by him, should pass the property without 
 more. The case is by no means uncommon. A lends 
 B a book which is much more useful to B than to A, 
 
GIFTS WITHOUT DELIVERY 147 
 
 and some time afterwards says or writes to B, " You 
 will make better use of it than I should, so pray keep 
 it." Surely this is enough.^ And the rule must be the 
 same if B is holding the thing as A's licensee or servant, 
 though in this case there will be a change of possession 
 as well as property. 
 
 If the thing is held by a third person, it seems that 
 the rules as to what amounts to " constructive de- 
 livery " in the case of a sale, for the purpose of satisfy- 
 ing the Statute of Frauds, will be applicable. Delivery 
 will be complete, and the gift irrevocable, when the 
 custodian either delivers the thing to the donee or 
 agrees at his request made with the donor's authority, 
 to hold it for him instead of for the donor. In the 
 possible case of the like request being made by 
 the donor, it would seem that the donee's general 
 assent to the gift would be sufficient without his 
 express concurrence in the request to the bailee or 
 custodian.^ 
 
 The actual facts of Cochrane v. Moore presented a 
 case of the kind last mentioned (25 Q.B. Div. at p. 59), 
 complicated by this, that the subject of the gift, not 
 being the whole chattel, but an undivided share of it, 
 was incapable of manual delivery. The actual de- 
 cision {ib. at p. 73) was on the ground that, whatever 
 view were taken of this part of the transaction, the 
 plaintiff, who claimed under a subsequent bill of 
 sale, was intended by the donor to take, and, being 
 
 ' It is now decided that a gift to a donee already in possession needs no 
 further act to complete the donee's title : Be Stoneham [1919] 1 Ch. 140. 
 
 2 See now Kilpin v. RatUy [1892] 1 Q.B. 582, Cain v. Moon [1896] 
 2 Q.B. at p. 289. 
 
148 ESSAYS IN THE LAW 
 
 informed of such intention, did take whatever passed 
 in respect of the share in question, only as a trustee 
 for the defendant. 
 
 In the case of A making a gift of chattels by deed to 
 B and retaining the custody, it may be asked in what 
 capacity he holds them before B claims delivery. . It 
 would seem that he makes himself a bailee at will, and 
 that A and B have concurrent rights of action against 
 any trespasser. 
 
 Where ^'s chattel is held adversely by a third 
 person without colour of right, it seems clear that A 
 may authorise B to retake the thing as A's servant, so 
 far as A himself could lawfully retake it,^ though B is 
 not A's servant generally. And it would seem that A, 
 if so minded, may no less authorise B to keep the 
 thing, when retaken, for himself. Brian C.J. seems, 
 however, to have held that the owner out of possession 
 had a mere right of action which could not be released 
 by parol even to the person in possession. " The 
 property is divested by the taking, and then he [the 
 true owner] has only the right of property, and so 
 the property and the right of property is not the 
 same. Then if he had only a right this gift is void, 
 for one cannot grant one's right " : 6 Hen. VII. 8, 
 9, pi. 4, cf. 10 Hen. VII. 27, pi. 13, where Keble 
 (a Serjeant who never became a judge), arguing that 
 the owner of a chattel can give it by way of release, 
 
 1 Blades v. Higgs, 10 C.B.N.S. 713, goes very far in justifying forcible 
 recaption ; but the old law did not allow it, save on fresh pursuit. See 
 Eritton, ed. NiohoUs, i. 57, 116, according to which the violent recaptor, 
 though not liable to an appeal of robbery, was a trespasser, and lost his 
 property in the goods. 
 
GIFTS WITHOUT DELIVERY 149 
 
 without deed, to a trespasser who has taken it, was 
 contradicted by Brian. Keble's view on this point 
 seems to be allowed in Shepp. Touchst. 240, 241, 
 where, however, it is possible that the word " give " is 
 to be read as confined to grants by deed. Cf. Mr. J. B. 
 Ames's papers on " The Disseisin of Chattels " in 
 Harvard Law Rev. iii. 23, 313, 337. 
 
 I do not understand any part of the judgements 
 delivered in the Court of Appeal to deny that a parol 
 gift may be perfected by subsequent delivery or 
 authorised entry into possession by the donee (I avoid 
 the word " taking " as having a technical meaning in 
 the law of theft), or that it may be effectual in a case 
 where the donee is already in possession, or that de- 
 livery by attornment may be as good in the case of gift 
 as in the case of sale. But if there were any passage 
 conveying such a meaning, I should humbly doubt, 
 for the reasons above given, whether it could be 
 sustained. 
 
 The wisdom of the sort of people who sneer at what 
 they call " academical " learning is well illustrated by 
 the fact that Mr. Maitland's researches on Seisin, 
 pubhshed partly in this Review and partly by the 
 Selden Society, were turned to excellent practical 
 account by the Lords Justices (25 Q.B. Div. at 
 p. 65). 
 
 My learned friend Mr. H. W. Elphinstone,^ with 
 whom I have pleasantly and profitably discussed the 
 subject at many times, allows me to say that he 
 agrees generally in what I have here set down. 
 
 1 Afterwards Sir Howard, d. 1917. 
 
150 ESSAYS IN THE LAW 
 
 I ought to say that another learned friend ^ whom I 
 have consulted declines to admit the first step in the 
 argument, and thinks that the utmost effect of the 
 parol gift, considered as a licence to take possession, 
 would be to enable the donee to bring possessory- 
 actions against a stranger in the donor's name without 
 objection on the score of maintenance. 
 
 ^ B. S. (afterwards Justice) Wright. 
 
VI 
 
 HAS THE COMMON LAW EECEIVED THE 
 FICTION THEORY OF CORPORATIONS ? ^ 
 
 An aflSrmative answer to this question may seem, 
 at first sight, to be implied in much, of the language 
 used in various English books of more or less weight, 
 and even in some utterances of persons speaking 
 with authority in the full and technical sense of 
 that word as used in English jurisprudence. I can 
 think of no fitter offering to send our honoured master, 
 Dr. Gierke, on the present occasion than an endeavour 
 to show that this fixst impression, though it may be 
 natural, is mistaken. The truth is, I believe, that 
 we have to be careful to distinguish occasional 
 borrowing of exotic phrases for ornament from the 
 serious reception of a doctrine, and still more from 
 admission of all its consequences. A classical example 
 occurs in Blackstone's pious exaltation of the law of 
 nature as superior to all human laws, obviously 
 copied without reflexion from some fashionable 
 Continental publicist. When he comes to the real 
 business of the English Constitution this does not 
 prevent him from laying down the omnipotence of 
 
 • From the Festsohriit offered to Prof. Gierke for hia seventieth birthday 
 (Weimar, 1911) : reprinted in L.Q.R. xxvii. 219. 
 
 151 
 
152 ESSAYS IN THE LAW ^i 
 
 Parliament in unqualified terms. • And so in the 
 present case my lamented friend, Maitland, was well 
 within the limits of caution when he wrote : " For 
 the last three centuries and more Englishmen have 
 been repeating some of the canonical phrases " of 
 the Fiction theory, " but Dr. Gierke would probably 
 say that we have never taken them much to heart." 
 English lawyers have never taken dogmatic theories 
 of any kind much to heart. • Our doctrines get settled 
 either by a gradual process of semi-conscious consent 
 worked out in the solution of particular cases, or by the 
 development, in the same manner, of conflicting tend- 
 encies in professional and judicial opinion until at last 
 a decisive practical choice is called for. Possession, for 
 example, is still of the utmost importance in our law of 
 property, and one would think that, among the ques- 
 tions which can arise in dealing with titles ultimately 
 founded on possession, by no means the least practical 
 and urgent was that of the Relativity of Possession,^ 
 as it has been called. Yet a definite and comprehen- 
 sive doctrine on that point was first laid down by 
 our Court of Appeal as late as 1897, when my former ■ 
 instructor. Lord Lindley,^ then Lord Justice, did me 
 the honour of adopting the words in which I had tried 
 some years earlier to formulate the rational result of 
 many authorities, often ambiguous and sometimes con- 
 flicting on the flrst view. We are therefore entitled 
 to say that, if our Lady the Common Law does really 
 
 ■^ The principle that possession de facto creates not merely an interest 
 which the law will provisionally" protect, but a right carrying with it all the 
 incidents of a true title as against every one who can show no better 
 right. 2 D. 1921. 
 
VI FICTION THEORY OF CORPORATIONS 153 
 
 stand committed to any definite speculative theory 
 on the nature of an artificial person, her condition of 
 dogmatic beatitude is not normal but .exceptional. 
 
 , It must be admitted, I think, that a modern 
 English lawyer who knew nothing about the con- 
 troversy ^ would oftener than not be ready to accept 
 persona ficta as the proper Latin equivalent of our 
 accustomed term " artificial person " ; either because 
 it would not occur to him that anything beyond a 
 question of words was involved (which appears to be 
 still the state of mind even of some very learned 
 writers), or possibly because he might not be familiar 
 with the slightly archaic technical meaning of the 
 word " artificial " itself. That meaning is certainly 
 not " fictitious." It is rather " in accordance with 
 the rules of art " — the lawyer's art, no other being 
 in question — lawyerlike, juridical. • A skilfully drawn 
 deed is said to be artificially drawn ; the work of a 
 bungling amateur testator or incompetent practitioner 
 is said to be inartificial. Thus it seems that the 
 term " artificial person " in English does not in itself 
 involve any controversial doctrine more or otherwise 
 than " juristische Person " in German. . More than 
 thirty years ago, and before the publication of Dr. 
 Gierke's great work, I ventured to protest against 
 the assumption that an " artificial " person must be 
 fictitious in the popular sense. 
 
 ' Those who do know of it seem on the whole to favour realism. See 
 especially Mr. C. T. Can's concise and excellent book on the Law of 
 Corporations (1905) ; " The Personality of the Corporation and the State,'' 
 by Prof. W. Jethro Brown, L.Q.R. xxi. 365. Mr. Justice Salmond of New 
 Zealand {Jurisprudence, 6th ed., 1920), adheres to the Fiction theory. 
 
154 ESSAYS IN THE LAW vi 
 
 " Perhaps," I said in 1876, " we may call the artificial 
 person a fictitious substratum or substance conceived as 
 supporting legal attributes, remembering always that we 
 must think of legal fiction as derived from fingere not in the 
 modern sense of mere feigning, but in the sense of creating 
 or fashioning. Nor would it be very dif&cult to show, were it 
 not a matter of metaphysical rather than legal interest, that 
 what we call the artificial identity of a corporation is, 
 within its own sphere and for its own purposes, just as real 
 as any other identity." ^ 
 
 When I so wrote I had read Savigny, and assumed 
 his exposition to be authoritative so far as modern 
 Roman law was concerned. I did not understand 
 the practical importance of the consequences drawn 
 from the Fiction theory on the ContineHt, and knew 
 nothing of the mediaeval controversies. In later 
 revisions ^ I have made it clear that I hold the 
 " realist " theory the more reasonable, and see no 
 reason why an English lawyer should not adopt it. - 
 Whether there is any real authority to prevent him 
 from so doing is just the question on which I propose 
 now to say a little more than can be said by way of 
 digression in a practical text-book. I have quoted my 
 statement in its original form not because any special 
 value attaches to it, but to show that in Lincoln's Inn, 
 as long ago as 1876, a yoimg lawyer still fresh from 
 his masters and books was pretty free to think what 
 he pleased about the nature of corporate personality. 
 
 In our search for authority, perhaps it will be the 
 safer way to proceed backwards from the nearer and 
 more known to the remoter and less-known materials. 
 
 ' Principles of Contract, 1st ed., 1876, p. 81. 
 2 7th ed., 1902 ; 9th ed., 1921. 
 
VI FICTION THEORY OF COEPORATIONS 155 
 
 For as soon as we come to any decisive opinion, if 
 ever we do, the stages lying beyond that will be 
 matter only for historical curiosity ; while the farther 
 we go back without finding any such opinion, or any 
 recognition of an earlier authentic deliverance, the 
 less inclined we shall be to judge that the Common 
 Law has dogmatised on the subject at all. No one 
 who is familiar with the Enghsh judicial mind will 
 be surprised at the scantiness of positive utterances 
 on a question of this high order of generality. The 
 nearest approach to such an utterance that I have 
 found within our own time is twenty-one years old, 
 and occurs in a judgement of the late Mr. Justice 
 Cave, a learned and thoughtful lawyer. Counsel had 
 argued that certain retired members of an insolvent 
 building society were liable, notwithstanding their 
 retirement, to contribute to the payment of its debts. 
 The precise question turned on the interpretation of 
 special enactments, the terms of which have no interest 
 for our present purpose. But as to the general 
 principles involved the learned judge said : "A 
 corporation is a legal persona, just as much as an 
 individual ; and, if a man trusts a corporation, he 
 trusts that legal persona, and must look to its assets 
 for payment : he can only call upon individual 
 members to contribute in case the Act or charter 
 has so provided." ^ No such word is here as " fiction " 
 or " fictitious," not even " artificial." It is true that 
 no formal theory was before the Court at all : it is 
 probable that Mr. Justice Cave was not thiaking o^ 
 
 1 22 Q.B.D. at p. 476 [it is better now to give the actual date, 1889], 
 
156 ESSAYS IN THE LAW 
 
 the controversy between fictionists and realists ; it 
 is possible that he had never heard of it. Still, do 
 we trust a Fiction ? and is a Fiction " just as much " 
 a person as a real man ? • I do not know what inference 
 a Continental jurist might be tempted to draw from 
 the admission that an Act of Parliament or royal 
 charter may displace the usual presumption, " Quod 
 universitas debet singuli non debent." In this 
 country there is no doubt since Blackstone's time, 
 some would say since Sir Thomas Smith's, that the 
 legislative competence of Parliament is unlimited, 
 and there has never been any that the King's discretion 
 as to the terms of the charters he is pleased to grant 
 is very large. An English lawyer will therefore draw 
 no speculative inference at all. 
 
 • On the other hand, we may certainly find Lord 
 Selborne saying in 1872 that a railway company 
 " is a mere abstraction of law. All that it does, all 
 that the law imputes to it as its act, must be that 
 which can be legally done within the powers vested 
 in it by law. Consequently a thing which is ultra 
 vires and unauthorised is not an act of the company 
 in such a sense as that the consent of the company 
 to that act can be pleaded." ^ This might well have 
 been said by a man with his head full of the Fiction 
 theory, and Lord Selborne, who was a scholar, though 
 not very learned in the antiquities of the law, may 
 well have known something of the theory in its earlier 
 forms. But the English doctrine of Ultra Vires, as 
 we call it, does not really go back to any ultimate 
 
 1 L.R. 8 Ch. at p. 152. 
 
VI FICTION THEORY OF CORPORATIONS 157 
 
 conception as to the nature of a corporate body. 
 It is a doctrine, to use a convenient American term, 
 of constitutional limitations. If the same authority 
 which created a given juristic person, or authorised 
 the constitution of many juristic persons by the 
 performance of certain conditions, has at the same 
 time set bounds to the legal competence of such 
 persons, bounds which are matter of public knowledge, 
 then acts professedly done in their name and exceeding 
 those bounds are nullities. No English lawyer can 
 question the power of Parliament (of the King with- 
 out Parliament we do not speak for the moment) 
 to impose such disabilities. The problem is at 
 bottom one of interpretation, to ascertain what was 
 the will of Parliament in the given case or class of 
 cases. By the way, one writes nowadays ^ of the will 
 of Parliament quite naturally, though Parliament is 
 assuredly no corporation in the legal sense. Is that 
 will a real or a fictitious will ? If the Lords have 
 amended a bill sent up from the Commons, is it the 
 will of the majority in the Lords, the majority of the 
 Commons, all the members who voted in both majori- 
 ties, all the members who took part in the divisions, 
 all the members who heard the debates, or the 
 whole aggregate of members of both Houses whether 
 present or not ? But this is off our immediate 
 question : only it would appear that in some sense 
 " Imperium habet animum," Baldus notwithstanding.^ 
 Now in the great case of the Ashhury Company, in 
 
 1 In the Middle Ages it was hardly possible. See Maitland's note 
 Introd. to Memoranda de Parliamento, p. Ixvii. 
 
 2 See Gierke, Polit. Theories of the Middle Ages, tr. Maitland, p. 70. 
 
158 ESSAYS IN THE LAW 
 
 1875, tlie House of Lords finally decided that, as 
 regards companies established under the general pro- 
 visions of the Companies Act of 1862, the Memo- 
 randum of Association — (a public and registered 
 document specifying the company's objects) — ^is a 
 fundamental constitution or " unalterable law " which 
 the company has no power to enlarge. Lord Selborne 
 used more guarded language than he had done three 
 years earlier : "A statutory corporation, created by 
 Act of Parliament for a particular purpose, is limited, 
 as to all its powers, by the purposes of its incorporation 
 as defined in that Act." There is nothing here about 
 " a mere abstraction of law." Lord Cairns, then 
 Lord Chancellor, a much greater lawyer than Lord 
 Selborne, based his opinion wholly on the policy 
 and intention of the Act of 1862, and said not a word 
 about the nature of corporations in general.^ This 
 was the end and summing-up of a long series of 
 decisions of which it would be out of place to say 
 more here. No doubt the Fiction theory, or some- 
 thing very like it, had been copied ^ by writers who 
 
 1 L.R. 7 H.L. 653, 663 (Lord Cairns), 693 (Lord Selborne). 
 
 ^ Or even travestied. • John . Austin, an acute dialectician, but devoid 
 of historical sense and seldom well informed or accurate in the details of 
 either English or Roman law-( though he had studied Roman law in Germany), 
 supposed not only hereditas iaceTis but praedium dominans and praedium 
 serviens to be fictitious persons (Lect. xii.). ■ The former opinion was, I 
 believe, accepted in 1832, when Austin wrote, but I have never heard of 
 any warrant for the latter. Austin held, seemingly without knowing it, 
 the extreme individualist rather than the fiction theory. Legal persons, 
 he said, " are persons by a figment, and for the sake of brevity in discourse. 
 By ascribing rights and duties to feigned persons, instead of the physical 
 persons whom they in truth concern, we are frequently able to abridge our 
 descriptions of them." I doubt whether any competent English lawyer 
 would at any time have admitted this to be an adequate or correct statement 
 of the Common Law. 
 
VI FICTION THEORY OF CORPORATIONS 159 
 
 had. read a little Roman law, and througli them had 
 come into fashion among company lawyers. In 1850, 
 Grant on Corporations, a text-book of learning and 
 repute, had talked of " metaphysical existence," 
 " abstraction of law," " the ens rationis called a 
 corporation." Five years later Mr. Lindley, as he 
 then was, a young lawyer who had studied Continental 
 authors and translated Thibaut (afterwards Justice, 
 Lord Justice, Master of the Rolls and Lord of Appeal), 
 had written in an early edition of his book, now 
 classical, on Partnership and Companies : " Corpora- 
 tions have no greater capacity than is conferred upon 
 them by their constitution." ^ But this passage was 
 afterwards altered into the different and much less 
 dogmatic form : " Trading and similar corporations 
 which are created for certain definite purposes have no 
 greater capacity than is conferred upon them by their 
 constitution." ^ Meanwhile both trading and other 
 corporations have been held responsible ex delicto for 
 wrongs committed by their agents and servants in 
 the course of their employment to an extent which 
 ought to satisfy the demands of any reasonable 
 realist. A word must be said of this later. What 
 we now learn, on the whole, from the history 
 of the Ultra Vires doctrine is that in 1875 the 
 House of Lords had an excellent occasion for 
 formally adopting the Fiction theory, if its judicial 
 
 ^ Cited in the AsJibury case in argument in the Court below, L.R. 9 Ex. 
 at p. 286. 
 
 2 Lindley on Companies,'Qth ed., 1902, i. 214. It may be worth while to 
 note that the appUcation of this principle is not confined to incorporated 
 associations : Amalgamated Society of Railway Servants v. Osborne [1910] 
 A, C. 87, 94. 
 
160 ESSAYS IN THE LAW 
 
 members had been so minded, and in fact did no 
 such thing. 
 
 We may now go back from the third quarter of the 
 nineteenth to the third quarter of the eighteenth 
 century, and see what Blackstone taught at Oxford 
 and revised in the eighteenth chapter of the first 
 book of his Commentaries, published in 1765. " As 
 all personal rights die with the person ; and, as the 
 necessary forms of investing a series of individuals 
 one after another with the same identical rights would 
 be very inconvenient, if not impracticable ; it has 
 been found necessary, when it is for the advantage 
 of the public to have any particular rights kept on 
 foot and continued, to constitute artificial persons, 
 who may maintain a perpetual succession, and enjoy 
 a kind of legal immortality." 
 
 A4 practising English lawyers know very well 
 that it is much more convenient and practicable to 
 do without any formal perpetual succession or legal 
 immortality than Blackstone professed to know. 
 Maitland has fully explained this matter for the 
 special use of Continental readers {Trust und Korpora- 
 tion), and it is needless to say more of it incidentally, 
 save that Blackstone, a member and Bencher of the 
 Honourable Society of the Middle Temple, must have 
 strangely forgotten its constitution, or want of con- 
 ■stitution, unless indeed it was his purpose to throw 
 dust in the eyes of the lay people. Outside the 
 Inns of Court, indeed, I know of at least one con- 
 siderable modern association, the London Library, 
 which has weighed the advantages and disadvantages 
 
VI FICTION THEOEY OF COKPORATIONS 161 
 
 of incorporation and deliberately decided in the 
 negative. Maitland has already called attention to 
 the still more remarkable case of the London Stock 
 Exchange, and also to that of the Selden Society. 
 Let us pass on, however, to Blackstone's words 
 concerning men who are required or prefer to be 
 incorporated. 
 
 When they are consolidated and united into a corporation, 
 they and their successors are then considered as one person 
 in law : as one person they have one will, which is collected 
 from the sense of the majority of the individuals : this one 
 will may establish rules and orders for the regulation of the 
 whole, which are a sort of municipal laws of this little re- 
 public ... all the individual members that have existed 
 from the foundation to the present time, or that shall ever 
 hereafter exist, are but one person in law, a person that 
 never dies : in like manner as the river Thames is still the 
 same river, though the parts which compose it are changing 
 every instant. 
 
 What is there about fiction here ? Nothing. Is 
 there any warning to the reader that he must under- 
 stand the " one will " as a mere abstraction, or that 
 the corporation of London has a worse claim to 
 reality than the river Thames ? There is none ; 
 and surely no man would have us believe that 
 Blackstone regarded the Thames as a mere name of 
 fiction for the locus of a certain volume of moving 
 fluid. I will not go so far as to affirm that Blackstone 
 would have explicitly refused his assent to the Fiction 
 theory. But I think we may say that if he took it 
 up at all he would carry it lightly. Still less would 
 I venture to guess in what manner Blackstone would 
 
 M 
 
162 ESSAYS IN THE LAW vi 
 
 have applied his general ideas to the tradiag and 
 industrial companies of our own times. With muni- 
 cipal trade gilds he and his predecessors were familiar 
 enough. 
 
 There is yet more to come. Blackstone declares 
 that a corporation, once formed, has certain necessary 
 and inherent rights. " Necessarily and inseparably 
 incident " is his language. He seems to imply that 
 nothing short of the omnipotence of Parliament can 
 prevent them from being attributed to their subject. 
 Here Blackstone is closely following a passage in 
 Sir Edward Coke's Reports which, notwithstanding 
 this conspicuous repetition of its substance, appears 
 to have strangely fallen out of sight in almost all the 
 nineteenth-century discussion previous to the Ashhury 
 Company's case. It will be better, therefore, to 
 consider Coke's propositions ia their original form ; 
 and all the more so because Blackstone's language, 
 whether intentionally or not, is rather wider than 
 Coke's. In so doing we shall be skipping about a 
 century and a half ; we shall skip the great con- 
 troversy in the case of the liberties of the City of 
 London, in which there was more of politics than of 
 law, though we may refer later to one or two passages 
 in that case ; but we shall run no great risk of omit- 
 ting anything important for our general purpose. 
 The last three-quarters of the seventeenth century 
 and the first quarter of the eighteenth were, broadly 
 speaking, as barren in the development of purely 
 legal doctrine as they were fertile in pohtical inven- 
 tion and speculation. Between Coke, the last great 
 
VI FICTION THEOEY OF CORPOEATIONS 163 
 
 lawyer of the Tudor age, and Hardwicke and Foster, 
 the first of tlie Hanoverian, we mark a few com- 
 manding figures of men wlio have given us classical 
 judgements or treatises ; some of good and approved 
 lawyers who never came to the Bench : Hale, Holt, 
 Maynard, and Treby are such, but we may almost 
 call them " rari nantes in gurgite vasto." It was a 
 time of commonplace, indifferently learned, and not 
 always upright judges, who were ill enough reported 
 for the most part, but perhaps no worse than they 
 deserved to be. 
 
 The case of Sutton's Hospital (afterwards commonly 
 called the Charterhouse), 10 Rep. 23a, arose on 
 objections to the validity of a charter granted by 
 James I. in substantial pursuance of a special Act of 
 Parliament, but with a variance of the site contem- 
 plated by the Act for the intended foimdation.^ 
 Coke, who took part in the case as Chief Justice of 
 the Common Pleas, thought the greater part of 
 these objections " were not worthy to be moved at 
 the bar, nor remembered at the bench," and no 
 modern lawyer will hesitate to agree with him. 
 They are formalist even to frivolity, and there is 
 nothing to be said of them here. We are concerned 
 
 1 The statement of the facts is even more confused and imperfect than 
 usual in Coke's reports ; he probably thought the details not material. 
 The argument proceeded on admission of the facts as found by a special 
 verdict in an action of trespass on a declaration in the common general 
 form and a plea of not guilty ; the verdict is set out in the record, 10 Rep. 
 16. There was also, it seems, controversy about an additional benefaction 
 given by Sutton's will (10 Rep. at p. 206), and see further references in the 
 life of Thomas Sutton in Diet. Nat. Biogr., but Coke throws no light on this. 
 It looks as if in the common report of the time there was some confusion 
 between the charter and the wiU. 
 
164 ESSAYS IN THE LAW 
 
 only with Coke's general propositions. He worked 
 them, into Ms report in his usual unsystematic manner, 
 without making it at all clear how far either their 
 matter or their form represents anjrfching that was 
 really laid down by the Court. But it is an accepted 
 professional convention that whatever Coke deliber- 
 ately says, in season or out of season, may be taken 
 as good warrant for what was understood to be the 
 law in his time, unless it is clearly repugnant to some 
 other authority of at least equal weight ; and on the 
 whole it is a reasonable convention, though historical 
 criticism is obviously not bound by it. . " Now it is 
 to be seen," says Coke, " what things are of the 
 essence of a corporation." These things are, in 
 brief: 1. "Lawful authority of iacorporation " : 
 2. " Persons to be incorporated " : 3. A name : 
 4. A certain place : 5. Sufl&cient (not necessarily 
 technical) words. We may pause a moment on the 
 requirement of a name. English law was, in the 
 year 1613, still in the archaic stage of looking 
 at justice and judgement mostly from the point of 
 view of procedure. • Men are possible plaintiffs and 
 defendants ; they have to come, or be brought, 
 before the Court in due form. AVhen John Doe sues 
 out his writ against Eichard Eoe, there will as a 
 rule not be much doubt as to the persons designated : 
 whether the right plaintiff has found the right 
 defendant may be a grave question of practice or 
 even of law, but is not to the present purpose. In 
 special circumstances, however, occasion of doubt 
 may arise. Eichard Eoe may conceivably say to the 
 
VI FICTION THEORY OF COEPORATIONS 165 
 
 plaintifi who appears under the name of John Doe, 
 " Who gave you that name ? " and John Doe 
 may have, metaphorically, to produce his godfathers 
 and godmothers. He may succeed, or, like Arthur 
 Orton when he sued in the name of Roger Tichborne, 
 he may fail. Or the man on whom process is served 
 as Richard Roe may say, " That is not my name " ; 
 or, perad venture, " I am not that Richard Roe but 
 another." We are lax about these things in England : 
 at this day John Stiles is no more required, or likely, 
 to have an etat civil in his pocket than were his 
 Elizabethan ancestors. Nevertheless personal iden- 
 tity may be challenged, and if challenged must be 
 proved, at need, in the old Germanic fashion by the 
 witness of lawful neighbours. Now there comes a 
 writ, let us suppose, in the name of the Governors 
 of Sutton's Hospital.^ Most naturally the defendant 
 will ask : What kind of name is that 1 Thomas 
 Sutton I know ; few men have not heard of " rich 
 Sutton " ; but who are these nameless ministers of 
 Sutton's intent ? If they recover judgement against 
 me, to whom shall I satisfy it ? If they fail, from 
 whom shall I get my costs ? and if they are in mercy 
 (though I have not to teach the King to look to his 
 own) where shall the King's exchequer find the 
 amercement ? Clearly Richard Roe, a lawful man 
 of flesh and blood, is entitled to know that he is not 
 fighting with shadows : not to speak of the sherifi, 
 who might demand a substantial nominative to the 
 
 1 This is abbreviated from the corporate name actuaOy given by the 
 charter. 
 
166 ESSAYS IN THE LAW 
 
 clause si fecerit te securum as long as it meant any- 
 thing. Coke will give defendant, sheriff, and all 
 others concerned their answer in a form which is not 
 the less apt for being quaint, and is for once concise : 
 " In this case Sutton as godfather gave the name, 
 and by the same name the King baptized the in- 
 corporation " (10 Eep. at p. 286). A little farther 
 on we learn that other kinds of answer are possible 
 and may be sufficient in law. The Master and Con- 
 vent of St. Mary's Hospital at Bristol say they were 
 incorporated by that name before the time of legal 
 memory ; the Master of the Hospital of Burton 
 St. Lazarus says he and all his predecessors have 
 always been so named {i.e. in pleading) and known ; 
 citizens may say, " The King has confirmed our 
 franchise to have a gild merchant " ; a college of 
 priests may say, " Paulinus the first Archbishop of 
 York founded us as a body of prebendaries conse- 
 crated to Our Lady, and that is admitted by divers 
 records." That is what we call in the Common Law 
 being incorporated by prescription ; it is the beatitude 
 of possession transferred to things invisible. " Nun- 
 quam viderunt aliter esse," as the men of Anglo- 
 Norman inquests used to say. Moreover this is 
 good to remember when we read, as we may, that it 
 is an offence against the King to " assume to act as a 
 corporation." King Henry II. might have fined us, 
 perhaps he did, for having an " adulterine gild " ; ^ 
 but if we have been let alone a few hundred years we 
 shall be a very good corporation in the eyes of King 
 
 1 Stubbs, Const. Hist. i. 418. 
 
VI FICTION THEORY OF CORPORATIONS 167 
 
 James I. Such is the law of England without question. 
 It seems a law not easy to express in terms of the 
 Fiction theory which some learned persons have sup- 
 posed to be part of it, and which even Maitland was 
 ready to believe we had nominally adopted. We have 
 heard certainly that fictions may pass for facts on the 
 strength of their antiquity. But it would be rather novel 
 to say that facts, when they have existed long enough, 
 become legal fictions, abstractions, entia rationis. 
 
 It appears then, in substance, that there are two 
 possible and quite distinct methods of justifying what 
 one may call corporate behaviour. The one is to say : 
 The King by his letters patent which we produce, or 
 the King in Parliament by a statute which is of public 
 knowledge, has made us a body politic and corporate. 
 The other is to say : Our existence under this name 
 and with all the usual incidents of a corporation is 
 ancient and notorious. In this latter case we may 
 have to talk of a fiction, but it is a fiction of pleading 
 which is equally well known in other cases of claims 
 founded on long possession or quasi-possession : it is 
 the fiction of a formal origin of title in the shape of a 
 charter which has been lost. Such is the normal use of 
 legal fiction, not, as the vulgar suppose, to escape from 
 the truth of things, but to make room for it by the 
 recognition of pressing facts. In form it may be, and 
 generally is, transparent ; but no one is expected to 
 accept it literally. It may be, and often is, clumsy and 
 circuitous ; but so is much archaic and even modern 
 procedure which does not involve any fictitious element. 
 
 Coke further remarks, again with his usual want of 
 
168 ESSAYS IN THE LAW vi 
 
 any discoverable relation to the immediate context, 
 that " three things were observed." The first is a 
 solemn platitude about prudens antiquitas, and has 
 nothing to do with any particular rule of law. The 
 second is that no " prescript and incompatible " ^ 
 words are necessary to create a corporation. The 
 third is that when a corporation is duly created, " all 
 other incidents are tacite annexed." Coke seems to 
 regard this proposition as in some sort deducible from 
 the last, but also vouches authority from a long 
 fifteenth-century case in the Year Book (21 Ed. IV. 
 Mich. 55, pi. 28), summarised in Fitzherbert's Abridge- 
 ment (Grant, 30). Coke appears to go a little beyond 
 Fitzherbert, and Fitzherbert a little beyond the book 
 at large ; ^ but this, as explained above, counts for 
 hardly anything among EngUsh lawyers, and to us, as 
 we are concerned with the opinions actually held by 
 Coke and his colleagues, it does not matter very much. 
 The real point of the earlier case (it would be too long 
 to explain how) is the importance of avoiding varia- 
 tions in a corporate name, whether in the charter itself 
 or in subsequent pleading ; but over-nicety in that 
 respect was already out of fashion at the date of 
 Sutton's case, for in the same term it had been decided 
 that variances merely in syllabis et verbis in a corporate 
 
 '^ Something seems to be wrong about the adjective "incompatible." 
 The sense required is " indispensable " or the Lite. But whatever word the 
 English translator of the report intended to use, it does not correspond to 
 anything in the French of the original edition. The translation was first 
 printed in the eighteenth century, but may have been made somewhat earlier. 
 
 2 I rather suspect Coke of having purposely cited Fitzherbert's much 
 condensed version as giving more ostensible support to his dictum than any 
 one passage in the full report. 
 
VI FICTION THEORY OF COEEORATIONS 169 
 
 name were immaterial.^ When Coke goes on to say 
 tliat power to dispose of the corporate property is in- 
 cident to incorporation, and if the charter provides (as 
 Sutton's charter did) that alienation shall be only in a 
 certain form, " that is an ordinance testifying the 
 King's desire, but it is but a precept, and doth not bind 
 in law," it does not appear that he has any specific 
 warrant at all for the statement. Still it purports to 
 be the unanimous opinion of nearly all the judges of 
 England ; ^ and though the words are doubtless Coke's 
 own, there is no reason, in the absence of contemporary 
 contradiction, to believe that he has perverted the 
 substance. We know that some of Coke's expositions 
 were excepted to by some of his colleagues as incorrect, 
 or at least unauthentic, but this does not seem to be 
 one of them. Indeed it is plain, so far as motives 
 of policy had anything to do with the decision, that the 
 Court intended to give a generous support and liberal 
 construction to the charter in favour of a munificent 
 and deserving foundation. Need we say again that 
 this doctrine is wholly repugnant to the first and most 
 important consequence of the Fiction theory, namely, 
 that a corporation has only that capacity which is ex- 
 pressly conferred on it ? or that the opposite doctrine 
 last mentioned could never have had the vogue which 
 it certainly did obtain during great part of the nine- 
 teenth century, unless the resolutions in the case of 
 Sutton's Hospital had been forgotten ? It is by no 
 means clear, indeed, exactly how far Coke meant his 
 
 ^ The case of The Mayor and Burgesses of Lynne Regis, 10 Rep. 1226. 
 ^ See 10 Eep. at pp. 246, 34a. 
 
170 ESSAYS IN THE LAW 
 
 dictum as to " the King's desire " to extend, or to 
 what extent it would be upheld at this day.^ But 
 what concerns us here is the fact that this opinion was 
 confidently laid down in 1613. On the question of 
 priuciple, the King certainly cannot confer on any 
 subject any interest in property save one of those 
 which are known and defined by law, nor, while he 
 confers a known interest, add new incidents to it or 
 deprive it of any existing one. In the fourteenth 
 century the Kong could not have granted land to a 
 subject and empowered him to devise the whole of it 
 by will ; at this day he could not restrain him from 
 doing so ; and for the same reason, that the expansion 
 of disposiag power in the fourteenth century would 
 have been, and the curtailment of it in the twentieth 
 century would be, contrary to the general law of the 
 land. Let us now substitute a corporation for a 
 natural person ; can we say that an estate with a 
 specially limited power of disposition is not really an 
 estate unknown to the law, and therefore such as the 
 King cannot grant ? It is not that the corporation, 
 as such, has any privilege in the matter, but that the 
 King has no prerogative to alter the course of the 
 Common Law in this more than in any other case. To 
 that extent Coke's position appears to be sound. The 
 worst that can be said about his manner of stating it is 
 that he was still entangled in an inveterate habit of 
 mediaeval scholars which was far from extinct in the 
 
 ^ See the modern authorities discussed by Mr. Percy T. Garden, " Limita- 
 tions of the Powers of Common Law Corporations," in L.Q.R. xxvi. 320. 
 My present observations are founded on fresh and independent examination 
 of the materials, but otherwise there is nothing new in them. 
 
VI FICTION THEORY OF CORPORATIONS 171 
 
 seventeentli century, the habit of thinking it necessary 
 to produce some show of authority, however novel and 
 open the question might be. In the same generation 
 Grotius made a vast number of citations from both 
 sacred and profane authors which were not more con- 
 clusive or relevant than Coke's. As to regulations not 
 at variance with the law of the land, insertion of them 
 in charters of incorporation is every day's practice, 
 and no one doubts that they are binding, whether as an 
 agreement between the Sovereign and the corporate 
 body or otherwise.^ But this appears to be merely a 
 technical question of English law. 
 
 In the report of Sutton's case I can see no evidence 
 that any of the judges or counsel showed any acquaint- 
 ance with Roman law, classical or modern, civilian or 
 canonical, beyond having heard of the term " univer- 
 sitas sive collegium." But it is certain that some 
 five years earlier Sir John Davies was conversant with 
 the canonists, as appears by citations both in the 
 preface to his Reports, and in the body of that book. 
 In particular, his report of the case of The Dean 
 and Chapter of Femes, " sive de capitulariter congre- 
 gatis "(476, 48a) vouches Panormitanus (Nicolaus de 
 Tudeschis) as to the powers of a majority.^ Sir John's 
 
 ^ For example, a member of a company incorporated by charter may sue 
 to restrain the directors from acting contrary to the prescribed conditions : 
 Bendall v. Crystal Palace Co. (1858) 4 K. & J. 326, 116 R.R. 349. 
 
 2 It may or not be significant that Panormitanus was certainly not a 
 partisan of the extreme Motion theory. In the only work of his to which 
 I have ready access there is a rubric, " Quomodo decemitur excommunicatio 
 contra collegium aut universitatem " ; there should be a sentence of 
 interdiction first, and then it seems the head, or indiTidual members, may 
 be personally excommunicated if they persist in contumacy : Judic. Ord. 
 Processus, Colon. 1555, 306. 
 
172 ESSAYS IN THE LAW 
 
 learning was of no common kind. If there was any 
 like person among the judges or counsel who took part 
 in Sutton's case, we may be sure it was not Coke. If 
 any one had presented the Fiction theory to Coke and 
 asked him to accept it, suggesting that the King of 
 England's prerogative could not with decency be held 
 inferior to the Roman Emperor's, perhaps Coke would 
 have been willing to do lip-service to it. But I do not 
 believe he would have understood the consequences, 
 and if he had understood them it is not too much to 
 say that he would certainly have repudiated them. 
 Some approach to the current language of the civilians 
 may be found at p. 326 of Coke's report, where it is 
 said that " a corporation aggregate of many is invisible, 
 immortal, and rests only in intendment and considera- 
 tion of the law . . . they cannot commit treason, nor 
 be outlawed, nor excommunicate, for they have no 
 souls, neither can they appear in person, but by 
 attorney. ... A corporation aggregate of many 
 cannot do fealty, for an invisible body can neither be 
 in person, nor swear. . . ." But all that is involved 
 here is the assertion that the juristic personality of the 
 corporation is distinct from that of any or all of its 
 members, and is not associated with an individual 
 body capable of sufiering corporal pain or imprison- 
 ment, or with an individual spiritual subject capable 
 of sin and exposed to the censures of the Church. So 
 much is allowed, and indeed required, by the realist no 
 less than by the fictionist doctrine. Two pages 
 farther on it is said to be true that none but the King 
 alone can create or make a corporation (though, as 
 
VI FICTION THBOEY OF CORPOEATIONS 173 
 
 Coke explains, h.e can delegate Ms authority as to 
 details). It seems at least doubtful whether Coke 
 would have relished any such proposition as that the 
 King, or the law, habitually creates fictions. Part 
 of Treby's argument for the City of London, all but 
 seventy years later, in the great Quo Warranto case, is 
 little more than a playful variation on this passage 
 of Coke. 
 
 Suppose that they under their common seal should commit 
 treason, and you bring an indictment of treason against the 
 mayor commonalty and citizens of the City of London, what 
 judgement shall be given against them ia their corporate 
 capacity ? What ? It shall be that " suspendatur per 
 coUum corpus politicum." And then, what execution shall 
 be done upon that sentence ? What ? must they hang up 
 the common seal ? (8 St. T. 1138). 
 
 Observe, he does not say " delinquere non potest," 
 but " suspendi per coUum non potest," a very different 
 matter. Treby's interest, of course, was to suggest 
 every possible objection, technical as well as sub- 
 stantial, to penal proceedings against a corporation. 
 The King's advisers, on the other hand, were prepared 
 to go very far in ascribing both wrongful acts and 
 wrongful intention to a corporate body, for they 
 charged the City of London with a malicious and 
 seditious libel. No general inference can be drawn 
 except that there was no settled rule either way to 
 prevent either argument from being plausible. 
 
 We may now try to sum up the doctrine as it 
 appears to have been understood at the time, say 
 about 1600, when the Common Law was settled 
 
174 ESSAYS IN THE LAW 
 
 in its classical form and became accessible in print. A 
 body of men claiming corporate personality may rely 
 either on express royal authority (much more on the 
 authority of an Act of Parliament in which the King 
 and the estates of the realm concur), or on ancient and 
 continuous usage. When the existence of a corpora- 
 tion is estabhshed in either way, it is a person in law 
 having such capacities and disposing powers as are 
 compatible with an incorporeal subject of rights and 
 duties. These capacities are attributed to it by the 
 general law, and an express grant is not needed to 
 confer them. On the contrary, they can be diminished 
 only by express restriction. The King, or the founder 
 with his assent, can prescribe internal regulations, but 
 the prevalent opinion is that without Parliament he 
 cannot substantially derogate from the corporation's 
 right to do, by means of its common seal, aU such acts 
 in the law as a natural man may by deed, nor yet con- 
 fer on it immunity from an ordinary man's responsi- 
 bility ; the law will allow the limits imposed in both 
 directions by the nature of things, and it knows of no 
 others. How far exactly these conditions operate, to 
 what kinds of actions and legal process, for example, a 
 corporation is amenable, has to be worked out as 
 particular cases arise. As to what the nature of 
 corporate personality may be in itself, no positive rule 
 at all is laid down. Most of these points could prob- 
 ably be supported at need by a good show of civilian 
 though hardly of canonist authors. Nevertheless the 
 whole does not look to me very like the work of men 
 imbued with the Fiction theory. 
 
VI FICTION THEOEY OF COEPOEATIONS 175 
 
 NotMng decisive can well be expected, after this, 
 from the Year Books, nor have I found any such 
 matter by pursuing the usual clues. As to saying with 
 any certainty what language may or may not be 
 found somewhere in the Year Books, that is impossible 
 to any ordinary human faculties, and will remain so 
 until such time as the whole of them are critically 
 edited and adequately indexed. In the meantime we 
 may be thankful for the sixteenth-century Abridge- 
 ments, and Brooke has a pretty full title on Corpora- 
 tions and Capacities. I do not pretend to have ex- 
 hausted or nearly exhausted that title ; but from such 
 examination as I have been able to make it seems to 
 me that mediaeval English lawyers were very like 
 their descendants, and would not commit themselves 
 on an abstract question in a general form if they could 
 help it. They wanted to know what certainty in 
 pleading was required of a pleader handling corporate 
 names ; what remedies were ia practice available 
 against corporate bodies and their property ; how far 
 the Court would take notice of the relations between a 
 corporation and its individual members either for its 
 advantage or for its disadvantage. It may be of some 
 interest to give a few examples. 
 
 A condensed version of the material passages must 
 
 suffice. 
 
 15 Ed. IV. 1, pi. 2 (a.d. 1476). Action of debt 
 against Abbot and convent on a bond under their common 
 seal. Catesby (for defendant) : This action will not lie, 
 for this Abbot's predecessor compelled his monks by 
 imprisonment and menaces to execute the deed. Genney 
 (for plaintiff) : The plea is bad, Abbot and convent are 
 
17B ESSAYS IN THE LAW 
 
 one person in law, and the head cannot imprison or 
 threaten the body. Littleton J. : For some purposes 
 they are one and for others not. If a monk commits 
 felony he shall answer for it without the Abbot. Beian 
 C.J. [a man of legal genius to whom justice must be 
 done by some future editor] : This is no plea. If the 
 Abbot and all the monks individually made a deed with 
 all their names and sealed it with the convent's seal, 
 it would not bind their successors for want of the corpor- 
 ate name. So the convent is not menaced or imprisoned 
 though every one of the monks be so. Gateshy : If my 
 Lord's law is good, how shall the corporate assent ever be 
 given so as to bind successors ? Littleton J. : The Chief 
 Justice's case is well put : the Abbot and convent can be 
 bound only by their corporate name; hkewise the Mayor 
 and Commonalty of a town. Brian C.J. : A man shall 
 not have a writ of trespass against the Abbot and convent, 
 for the convent cannot trespass ; nor yet against a Mayor 
 and Commonalty. " Quod fuit concessum per totam 
 Curiam." . . . Littleton : If the Abbot and a majority 
 of the brethren willingly bind themselves, his successor 
 shall not avoid it by alleging that the minority were 
 imprisoned (i.e. constrained to agree by imprisonment : 
 it is a question of avoiding the deed for duress). And, 
 sir, in Parliament if the majority of the knights of the 
 shire assent to making an Act, and the minority wiU not 
 agree thereto, yet it shall be a good statute for all time ; 
 so in the other case. . . . [The parties went to issue on 
 the question of menace.] 
 
 Brian's dictum agreed to by the Court looks at first 
 sight like a strong assertion of the canonist view. But 
 it must be observed that by no means every delict is 
 a trespass. In the Common Law trespass involves 
 physical interference ; disturbance of possession or 
 violence offered to the person. An incorporeal person 
 cannot beat or imprison a man or break a close. We 
 
vr FICTION THEORY OF CORPORATIONS 177 
 
 say now that both a natural man and a corporation 
 may be liable for such things when done by their 
 servants or agents, and even for wilful and deliberate 
 wrongs if the wrong was committed in the employer's 
 supposed interest, and the act was of a kind which in 
 some circumstances it might have been lawful for the 
 servant to do in the course of his employment. But 
 this is nineteenth-century doctrine ; in the fifteenth 
 century the modern law of agency was quite unde- 
 veloped. Brian's view, namely that a writ of trespass 
 would lie only against a natural and visible man who 
 actually laid hands on theplaintifi or trod the plaintiff's 
 ground, was almost inevitable at the time. 
 
 In another curious case of a dispute between a 
 Benedictine house and the City of Norwich, which 
 runs through many pages of 21 Ed. IV. (a.d. 1482-3), 
 and is too long to extract, Brian seems to hold a rather 
 different opinion. 
 
 21 Ed. IV. Pasch. 28 a. There is a difference accord- 
 ing as the corporate name includes several names or 
 only one. Here are three persons in the corporation, 
 Mayor, SheriSs, and Commonalty, and imprisonment 
 of the Mayor is no imprisonment of the others . . . 
 but if the Chapter of Ripon is incorporated by the name 
 of Chapter, which is an entire body, and any of them is 
 in prison, a deed made by them is wholly void. 
 
 Eod. anno, Mich. 70. Neele J. : This is a body poUtic 
 made up of men like you and me, and if the head is cut 
 off the man is dead. So if the Mayor, who is head of 
 the body poKtic, dies, the writ abates. A grant by the 
 Commonalty without the Mayor, or the Mayor without 
 the Commonalty, is void. [But this is disputed.] Brian 
 C.J. : It is no plea (to an action against the Corporation) 
 to say that one of the Commonalty was in prison, but if 
 
 N 
 
178 ESSAYS IN THE LAW 
 
 the majority are in prison it is good. ... If the Mayor 
 is wrongly imprisoned for a cause arising out of corporate 
 afiairs, the corporation, being disabled by the loss of its 
 head, may have a writ of false imprisonment in the 
 corporate name. 
 
 21 Ed. IV. Pasch. 31, pi. 28. Action brought by a 
 Dean and Chapter. A juror was challenged for partiality, 
 as being brother to one of the Canons. The challenge was 
 disallowed and the case came up on a writ of error by a 
 bill of exceptions. After a long discussion, Hussey C.J. 
 of the King's Bench said that it certainly was a matter 
 of partiahty : "for the more the Chapter has, the greater 
 the gain of the Canons," who are paid out of the capitular 
 estates. The case was considered important and difficult, 
 for it was adjourned before all the judges in the Exchequer 
 Chamber (fo. 63). For our purpose it is to be noted that 
 the whole discussion turned on the question whether the 
 juror who was challenged really had an appreciable interest 
 in the case. Brian C.J. : As to the point Vavisor (or 
 Vavasour, a Serjeant, and Justice of C. P. later) wants to 
 make of a diversity between " Dean and Chapter " and 
 " Mayor and Commonalty," say no more of that, Sir,^ 
 for no man here can perceive the diversity : " quod 
 fuit concessum." Ultimately the challenge was all but 
 unanimously allowed to be good. — It will be observed 
 that the argument proceeded in the main on common- 
 sense lines, and the speculative view that the Chapter 
 has nothing in common with the Canons was rejected. 
 
 These samples of Corporation cases in the fifteenth- 
 century Year Books do not pretend to be adequate, 
 but I hope they are fair and typical.^ I do not at all 
 
 ^ This is perhaps addressed to the opposing counsel ; a modem judge 
 would say : " Mr. A., we will not trouble you to reply on that point." 
 
 " Harvey of Stanton is reported to have alleged, in the course of an 
 argument on the franchises of Canterbury, that " comuna non est capax 
 libertatis " ; and denied that a corporation could claim a franchise without 
 shomng an express grant ; JSyre of Kent, ed. BoUand (Selden Soc, 1910), 
 p. 130. I have not yet been able to trace his supposed authority. 
 
VI FICTION THEORY OF CORPORATIONS 179 
 
 suggest that Brian or Littleton anticipated Dr. 
 Gierke, but I do think that if they are charged with 
 having saddled modern English lawyers with the 
 Fiction theory, or any dogmatic theory whatever, 
 there is good evidence to go to a jury on the plea of 
 Not Guilty. 
 
 As for the question, " utrum universitas delinquere 
 possit," our modern way has been to circumvent it. 
 The real difficulty was to make out how any man, 
 any natural man, could be vicariously liable to pay 
 damages for the wrongful act or negligence of his 
 servant, which he had in no way authorised and might 
 even have expressly forbidden. When this was over- 
 come, the difficulty of ascribing wrongful intention 
 to an artificial person was in truth only a residue of 
 anthropomorphic imagination. Fraud and malice, 
 some learned persons continued to say, belong only to 
 individual men ; much as our Germanic ancestors 
 could not conceive any right being transferred without 
 a tangible symbol, and, as late as the fourteenth 
 century, men thought the patron of a church insecure 
 until he had solemnly grasped the handle of the church 
 door. But those learned persons were already a 
 miaority half a century ago. The story is well and 
 sufficiently told by Mr. C. T. Carr in his recent book on 
 the Law of Corporations. My only regret is that he 
 asks himself whether " the Fiction theory has been 
 officially discarded." The time has come, I think, to 
 ask whether any English Court ever officially or semi- 
 officially adopted it, and I make bold to answer in the 
 negative. 
 
VII 
 
 THE TEANSFOKMATION OF EQUITY ^ 
 
 Equity, aequitas, e-n-ieUeia, and equivalents in 
 modern Continental tongues, have for several cen- 
 turies been current terms among jurists and publicists. 
 In England, and in jurisdictions beyond seas which 
 took their law from England, Equity has become, 
 by a peculiar historical development, the name of a 
 special body of judicial rules administered in the 
 exercise of a special jurisdiction which in its origin 
 was extraordinary. Historical students of legal ideas 
 have to remember that this technical use of the word 
 " equity " is much less ancient than the jurisdiction 
 itself. In the proceedings of the Court of Chancery 
 before the sixteenth century the complainants appeal 
 to the Chancellor most commonly in the name of 
 conscience, pretty often in that of good faith, right, 
 or reason, very seldom in that of equity .^ • Perhaps 
 
 1 From Essays in Lagal History (International Congress of Historical 
 Studies, London, 1913), ed. Paul Vinogradoff, Oxford, 1913. The present 
 paper may be taken as in some measure supplementary to Professor 
 VinogradofE's on Reason and Conscience in Sixteenth-Century Jurisprudence, 
 read at the Berlin Congress in 1908, and published in the Law Quarterly 
 Review, xxiv. 373. 
 
 ^ See Baildon, Select Cases in Chancery (Selden Soc), 1896, Introduction, 
 p. xxlx. 
 
 180 
 
VII THE TRANSFOEMATION OF EQUITY 181 
 
 it is not too mucli to say that the term was only 
 becoming current among English lawyers when St. 
 German discussed it in his Doctor and Student, a 
 discussion to which we shall presently return.^ In 
 the course of the sixteenth century the Greek word 
 iirLeUeia was used by a few writers in an Anglicised 
 form (see the Oxford English Dictionary, s.v. 
 " Epiky "), but the experiment was short-lived. 
 Whatever words are used, the general notion under- 
 lying them is that of a doctrine or authority capable 
 of preventing the hardship which otherwise would 
 ensue either from the literal extension of positive 
 rules to extreme cases or from the exclusion, .also by 
 a strictly literal construction, of cases that fall within 
 the true intention of the rule. 
 
 Such being the purpose of equity stated in the 
 widest terms, there are two quite distinct and almost 
 opposite aspects under which it may be realised. 
 In the first and more ancient of these we find equit- 
 able power exercised by some one, usually the king 
 or a great officer of state, who can dispense with 
 rules according to his discretion, conceived as a 
 reasonable discretion but not defined beforehand. 
 The other and modern form is the rational interpreta- 
 tion and qualification of the rules themselves by a 
 dialectic and scientific process. 
 
 The first method works by occasional interference ; 
 the occasions may be frequent or not, but each 
 interference is still an isolated act. The second 
 
 ^ St. German's immediate authority for the Aristotelian doctrine of 
 equity was Gerson : Vinogradoff, l.c. 374. 
 
182 ESSAYS IN THE LAW ^ 
 
 method works, on the contrary, by continuous 
 development. It is by this time almost a common- 
 place that the more archaic dispensing power, when 
 it falls into a regular course of official administra- 
 tion, loses its arbitrary character and gradually 
 assumes all the features of scientific law, becoming, 
 as Blackstone said a century and a half ago, 
 an artificial system. In the technical Enghsh 
 terms, extraordinary jurisdiction ends by being 
 ordinary. So gradual is the change that it is not 
 altogether easy for the modern student to realise 
 its extent or the discrepance of the original points 
 of view. 
 
 Let us consider the nature of superior dispensing 
 power apart from any particular forms. It appears 
 to be called for and determined by the nature of 
 archaic legal rules and archaic jurisdiction. Process 
 of law was, in the beginning, a substitute for un- 
 restrained private vengeance or self-help. For a long 
 time there were no regular means at all, and for a 
 much longer time no adequate means, of compelling 
 parties to use it. Hence early legal formulas do not 
 necessarily represent the general sense, at the date 
 of their origin, of what is just and reasonable. They 
 rather mark an outside limit beyond which vengeance 
 or self-help will not be tolerated, and that limit has 
 to be fixed with regard to the passions of ordinary 
 men under provocation. The lawgiver does not 
 advise taking an eye for an eye and a tooth for a 
 tooth ; he forbids taking the whole head. In like 
 manner the harshness of archaic law towards debtors 
 
vn THE TRANSFORMATION OF EQUITY 183 
 
 is capable of several explanations, and there may well 
 be some truth, in all of them. But this one, I think, 
 is fairly certain, that the law had to compromise 
 with creditors on the least amount of power over the 
 debtor which must be left to them if they were to 
 renounce the use of lawless private force. At the 
 date of the Twelve Tables that amount included, in 
 the last resort, the power of life and death, although 
 there is no reason to believe that the partis secanto 
 clause was ever executed in historical times.^ In 
 matters of family law we know that early Indo- 
 European custom hardly touched the despotic 
 authority of the eldest ancestor. Accordingly the 
 just man, in the estimation of archaic morality, is 
 not he who stands on his right and expects others to 
 stand on theirs, but he who knows how and when to 
 forgo the uttermost farthing : and, when once a 
 competent executive authority has been established, 
 the just ruler is he who gives effect to the moral sense 
 of the commonwealth by relaxing penalties in cases 
 of hardship and by putting forth his pre-eminent 
 strength against enormous evil-doers. Such,, indeed, 
 is the prevailing sentiment in Eastern countries to 
 this day. Great men and superior ofl&cials are 
 conceived not as ministers of rule, but as wielders 
 of a discretion transcending rule. Even educated 
 Asiatics appear to have great difficulty in under- 
 
 1 " Dissectum esse antiquitus nemine .^ equidem legi neque audivi " •- 
 A. Gelliua, xx. 1. 52 : his guess as to the original intention of the extreme 
 penalty, " eo consilio tanta inmanitas poenae denuntiatast ne ad earn 
 unquam perveniretur " is of course uncritical, but many modem antiquaries 
 have made as bad guesses or worse. 
 
184 ESSAYS IN THE LAW 
 
 standing that there can be such a thing as a rule 
 not subject to a power of administrative dis- 
 pensation in some one. A normal Eastern ruler 
 would find nothing strange in one Pope treating 
 Benvenuto Cellini as exempt from law and another 
 subjecting him to rigorous imprisonment on mere 
 suspicion, and would see nothing in the indignation 
 roused by James II. 's prosecution of the seven bishops 
 but one proof more that all Europeans are mad. 
 
 Not that it is an unknown thing in Western lands 
 to sue for personal favour or indulgence unwarranted 
 by rule, but the suitor, unless he is very ignorant, 
 knows that he is begging for something irregular and 
 hopes to persuade the man in authority, perhaps tries 
 to persuade himself, that a small breach of duty will 
 be venial. To find an European parallel to the 
 normal Eastern attitude we must look outside the 
 region of secular law to the popular and still half- 
 pagan cult of the saints in the Mediterranean countries, 
 where, as an ingenious French scholar has shown, 
 the saints have taken up the heritage of the gods. 
 There, to this day, patron and other saints are 
 besought and expected, sometimes on pain of losing 
 their worshipper's devotion, to perform a variety 
 of good offices in the celestial court, often of a kind 
 hardly in accordance with the doctrine or discipline 
 of the Church. Among the more innocent of these 
 favours is that of helping students to pass, their 
 examinations, for which it seems Ste. Eadegonde of 
 Poitiers has a special reputation. I know not whether 
 the operation is in the nature of strengthening the 
 
vn THE TKANSFOEMATION OF EQUITY 185 
 
 candidate's brain (wMch. tlie psycliologist may regard 
 as a not improbable efiect of his faith) or of softening 
 the examiner's heart. When it comes to invoking 
 St. Antony of Padua to save a man harmless in a 
 duel, in other words to protect him from the temporal 
 inconvenience, and the still graver spiritual danger, 
 of being killed in the commission of a wilful and 
 deliberate mortal sin, the notion of dispensing power 
 appears to be considerably strained. Such a votive 
 tablet, however, I have seen, and I do not suppose 
 they are hard to find in Italy. These archaic observ- 
 ances of imperfectly instructed CathoHcs may be 
 regarded, it seems to me, as modern survivals from 
 the prehistoric conception of executive authority in 
 general. 
 
 To return to the ground of our own faculty, I 
 took the lex talionis as a typical example of archaic 
 positive ordinance, although it is strange to our own 
 legal history : for the system of wergild and composi- 
 tion which, at the opening of that history, we find 
 in force among all people of Germanic stock would 
 not be appropriate for the same purpose. It seems 
 to me to belong to a much later and more rational 
 stage of ancient law, for it presupposes a long course 
 of bargaining and settlement of feuds, not so much 
 between individuals as between families and clans ; 
 and that again presupposes a more or less effectual 
 desire for peace, not by way of submission to a ruler 
 but by free consent of both parties. We know that 
 such a process took place in the heroic age of Greece. 
 The famous trial scene on the Homeric shield of 
 
186 ESSAYS IN THE LAW ^^ 
 
 Achilles exhibits this at the very moment when 
 public opinion begins to enforce the acceptance of a 
 wergild under proper conditions. 
 
 Homer omits to tell us what those conditions 
 were. This is unlucky for our archaeology, but quite 
 right for the artistic purpose, which is to describe 
 not the cause in dispute or the scene itself, but the 
 representation of it. According to the interpretation 
 in which I agree with my friend Dr. Leaf, the question 
 is precisely whether an aggrieved party who refuses 
 the offer of a composition is not bound to accept it : 
 there does not appear to be any difficulty about the 
 amount. The choice on the other side, the man- 
 slayer's or ofiender's, to pay or to bear the feud, 
 lasted into a comparatively recent period of Germanic 
 antiquity, as is well known. On the Homeric develop- 
 ment the curtain goes down abruptly, and when it 
 next rises we are in a different order of civilisation 
 altogether, with very slight materials for guessing 
 what has happened in the meantime. In any case, 
 and even before acceptance or ofier of a composi- 
 tion has become compulsory in form or in fact, the 
 existence of an assessable value shows that something 
 has been arrived at corresponding to what we call a 
 market price or a reasonable price in the world of 
 modern business. Thus the wergild presents itself 
 not as the utmost that can be exacted by strict law 
 but rather as an early form of equitable compromise ; 
 and the fixed scales of the early Germanic law-books 
 are really codification of a fairly settled customary 
 rule of aequum et bonum. It might be shown, I 
 
vn THE TRANSFORMATION OF EQUITY 187 
 
 think, without much, trouble, that such a scale of 
 compensation was in its time and circumstances a 
 much more sensible institution than it appears to us 
 at first sight ; but to pursue this would be somewhat 
 too remote from the argument. 
 
 In England the archaic form of equity pre- 
 dominated in the king's administration of special 
 remedial justice during the fourteenth and fifteenth 
 centuries ; the sixteenth was a period of transition ; 
 before the end of the seventeenth the Court of Chan- 
 cery was not only a regular court of justice but had 
 started on the road of technical and scientific 
 elaboration. 
 
 We have only within the last year become ac- 
 quainted with a form of this jurisdiction earlier than 
 its exercise by the Chancellor or even by the Council, 
 so early that all remembrance of it was long lost. 
 Mr. BoUand, in the course of editing for the Selden 
 Society the proceedings of Edward II. 's itinerant 
 justices in Kent, found a course of practice of which 
 no intermediate mention is known through very 
 nearly six centuries.'^ Causes of action arising or 
 continuing while the Eyre was in the county were 
 brought before the justices by presenting a bill 
 instead of suing out a writ in the appropriate form of 
 action. Many of these bills are preserved, and they 
 have a marked resemblance in their frame, and in 
 many cases as to their contents also, to the earliest 
 bills in Chancery. To understand the jurisdiction 
 
 1 2 Eyre of Kent (Seld. Soc, 1912), Introd. p. xxi. As to bills on the 
 Crown side, p. xxii. 
 
188 ESSAYS IN THE LAW vn 
 
 it must be remembered that the justices in eyre 
 represented the king's authority in a special and 
 eminent manner. If we may borrow a canonical 
 term, they carried with them high legatine powers ; 
 they superseded all ordinary tribunals. Only the 
 King's Bench, the Court held in contemplation of law 
 before the king himself, could claim ^ to rank above 
 them. Thus the king's residual or extraordinary 
 function of causing justice to be done where ordinary 
 means failed lay in their hand, and they were not only 
 entitled but bound to exercise it. Students of our 
 legal history do not need to be reminded that this 
 function had been recognised from the earliest times, 
 and was treated as Hving much later. The witnesses 
 for it extend from King Alfred's companion and bio- 
 grapher, the Welsh bishop Asser, to the Kentish 
 antiquary Lambarde, one of Elizabeth's justices of 
 peace. So the justices ia eyre, being such exalted 
 ministers of the king's power, were quite natural 
 depositaries of this royal discretion when as yet the 
 Court of Chancery was not. 
 
 Applications to the justices in eyre by way of bill 
 were multifarious enough. Some of those which Mr. 
 BoUand has published are founded on money claims 
 for considerable sums, and the parties appear to be 
 of good standing. But there is also a class of petitions 
 by humble suitors for relief against oppression or 
 extortion, alleging their poverty and inability to 
 cope with their adversaries by regular process of law. 
 This class anticipates, in almost every detail, the 
 
 1 27 Ass. pi. 1, cited by Willes J. 10 C.B.N.S. 22. 
 
VII THE TRANSFOEMATION OF EQUITY 189 
 
 petitions to the Council and the Chancellor of which 
 specimens were pubhshed in 1820 by the old Eecord 
 Commission, and in ] 896 by the Selden Society. We 
 find here exactly the same characteristic mark that 
 distinguishes those early Chancery proceedings, but in 
 still greater prominence. In a large proportion of cases 
 the complaint is such as, in the later settled practice, 
 would have justified a demurrer " for want of equity." 
 The justices are not called on to administer any special 
 rules or to recognise rights outside the ordinary law. 
 What the suitor asks them to dispense with is the 
 formality of process ; he claims a summary investiga- 
 tion, to use canonical language once more, sinefigura 
 et strepitu iudicii. Considering the predominant im- 
 portance of procedure in mediaeval law,^ this again is 
 quite natural. Sometimes the petitions are so illiter- 
 ate that the manner of the halting Anglo-French is 
 almost more eloquent of the petitioner's distress than 
 the matter. A specially illiterate one, which gave 
 Mr. BoUand and myself a good deal of trouble before 
 we arrived at the true rendering by the help of a 
 French medisevalist, relates the misfortunes of a man 
 who had paid a sum down to secure board and lodging 
 for the rest of his days. Obviously this crude make- 
 shift for a life annuity^ was at the mercy of the host's 
 good faith ; in this case avarice prevailed, and the host 
 not only failed to make decent provision for his paying 
 
 1 The " lex terrae " of Magna Carta, for example, is rather due process 
 of law than the substantive law defining offences. 
 
 2 Similar agreements were still in use in the latest years of the fifteenth 
 century : Trice Martin in Archaeologia, Ix. (1) at p. 378, where the complaint 
 is of refusal " to fynd or kepe " the plaintiff. 
 
190 ESSAYS IN THE LAW vn 
 
 guest, but imprisoned Mm, tied him up, it seems, with, 
 a chain. This, of course, was a plain trespass at 
 common law, supposing the fact to have been as stated. 
 Perhaps the story gained something in the telling ; at 
 any rate the result was a settlement of some kind 
 between the parties. We have said that there was no 
 question, at this time, of applying any peculiar law to 
 the suits initiated by bills in eyre ; but it does appear 
 that the justices, when once they had a case in their 
 hands, could proceed in a summary manner and use a 
 pretty free discretion. They could even interrogate 
 the parties, a thing unknown to common-law process. 
 On the other hand, a case begun in this way some- 
 times runs its later course to judgement as regularly as 
 if it had started with a writ ; and this may throw 
 some light on singularities of early Chancery pro- 
 cedure to which Mr. Pike had called attention long 
 before we knew that there was such a thing as a biU 
 in eyre. 
 
 It is needless to say more here of Chancery suits in 
 the fourteenth and fifteenth centuries, as the informa- 
 tion is easily accessible in the Selden Society volume 
 already referred to, and is summarised by Dr. Holds- 
 worth. There is, however, one rather curious head of 
 jurisdiction of which I have found no mention in text- 
 books. It was not very uncommon to apply to the 
 Chancellor for an injunction to restrain the defendant 
 from practising witchcraft against the plaintifi, or, it 
 might be, from making false charges of witchcraft 
 against him. This appears from a group of cases in 
 which clergymen were concerned, printed in 1907 by 
 
VII THE TRANSFORMATION OF EQUITY 191 
 
 Mr. Trice Martin in the Archaeologia,^ as well as from 
 the more generally known publications. If there was 
 any usurpation of jurisdiction in matters of " nygro- 
 mancy " it was against the Court Christian. 
 
 There is no reason to believe that the jurisdiction 
 of the mediseval Chancellors was unpopular. Com- 
 plaints began to be loud in the sixteenth century, and 
 were heard of earlier.^ But these were for the most 
 part, if not altogether, made or instigated by practi- 
 tioners of the common law who were aggrieved by the 
 growing competition of the Chancery. If the com- 
 petition had not met a public want it would not have 
 been efiective. What concerns us to note here is that 
 the grievance was expressly founded on charges of 
 arbitrary and uncertain interference with legal rights ; 
 the Chancellor and his officers went, it was said, by 
 their " conscience and discretion," which might mean 
 reasons borrowed from Roman law or anything else 
 they chose. The only final and satisfying answer to 
 such objections ia a civilised country was to make it 
 clear that the Court of Chancery was not a fountain of 
 unlimited dispensations, but as regular a court of 
 judicature as any other, a court whose existence pre- 
 cluded the king from setting up any new tribunals with 
 like jurisdiction, or administering its remedies in any 
 other way ; and this was in fact the line taken by 
 James I. with Bacon's advice when the conflict became 
 open and official. 
 
 1 Vol. Ix. (or 2nd ser. 10) pt. 1, 353 ; cp. the same writer's miscellaneous 
 specimens in vol. lix. pt. 1, 1 (1904). 
 
 2 Holdsworth, H.E.L. i. 246. 
 
192 ESSAYS IN THE LAW vn 
 
 Meanwhile Christoplier St. Grerman, a writer in 
 advance of his contemporaries in many things, put an 
 explanation of Equity in the mouth of his imaginary 
 Doctor of Divinity/ and appropriately so, when it was 
 still exceptional for the Chancellor to be a layman. 
 The Doctor speaks, of course, from the canonical point 
 of view, and does not profess to know Chancery 
 practice. Equity is not yet a term of art among 
 lawyers. • The Student knows something, it appears 
 later, about the cases in which the writ of sub poena 
 does and does not lie, but does not care to go into 
 details. Now the Doctor quite clearly takes the view 
 that the fundamental principle of equity is not 
 occasional and overriding interference, but enlightened 
 scientific interpretation. I am putting St. German's 
 thought into modern language, but I believe the words 
 bear me out. ■ " Equity is a righteousness that con- 
 sidereth all the particular circumstances of the deed 
 . . . and it is called also by some men epieikeia ; the 
 which is no other thing but an exception of the law of 
 God, or of the law of reason, from the general rules of 
 the law of man, when they by reason of their generality 
 would in any particular case judge against the law of 
 God or the law of reason — the which exception is secretly 
 understood in every general rule of general positive law." 
 Of these last words it is hardly too much to say that 
 they anticipate the reforming and constructive spirit 
 of Mansfield. The conception of Equity as expounded 
 by St. German was in itself nothing new. He was 
 quite openly following the scholastic tradition which 
 
 ' Doct. and Stud. dial. 1, o, 16. 
 
vn THE TRANSFORMATION OF EQUITY 193 
 
 went back partly by direct and partly by indirect 
 ways to Aristotle. But the treatment of it as practi- 
 cally applicable to English law shows a grasp and in- 
 sight quite exceptional at the time. The Doctor goes 
 on to suggest that there may be " some like equities 
 grounded on the general rules of the law of the realm " 
 and elicits from the Student examples of equitable 
 construction applied within the common law itself. 
 In the next chapter the Student goes so far as to say 
 that the only reason why the equitable relief granted 
 upon bills in Chancery does not count as part of the 
 common law is the absence of a formal record in the 
 king's court. " Forasmuch as no record remaineth in 
 the king's court of no such bill, nor of the writ of sub 
 poena or injunction that is used thereupon ; therefore 
 it is not set as for a special ground of the law, but as a 
 thing that is suffered by the law." 
 
 About a century later the Court of Chancery was 
 solemnly recognised as a perfect and regular court of 
 justice. Yet it was not till the end of the seventeenth 
 century that James I.'s decisive action bore its due 
 fruit. The causes of the check were not legal but 
 political, and are to be found in the controversies 
 between king and parliament, between prelates and 
 Puritans, which led to the Civil War. The Chancellor 
 was still eminently the king's minister ; his juris- 
 diction was practically uncontrolled, for there was no 
 appellate Court .; and men saw in the Chancellor's dis- 
 cretion, as they had seen in the criminal equity of 
 the Star Chamber, a power of being abused to poli- 
 tical ends. Here, and not in any merely technical 
 
 o 
 
194 ESSAYS IN THE LAW 
 
 prejudice, is the explanation of Selden's famous gibe, 
 " Equity is a roguisli thing." It is so because the 
 measure of the Chancellor's foot may go too near to 
 follow the measure of King Charles I.'s foot, perad- 
 venture even Archbishop Laud's : and so the fuller 
 working out of equity on St. German's lines had to 
 wait for the settlement of a free political constitution. 
 So far as England is concerned, the Puritan dislike 
 of Chancery jurisdiction may be taken as belonging to 
 the common knowledge of legal and other historians ; 
 and we know in a general way that it was carried 
 across the Atlantic. The full extent of its working 
 on the western continent has been disclosed to the 
 learned world only by pretty recent publications of 
 American scholars. While Story was setting forth 
 the beauties of equity jurisprudence in his most 
 elegant periods, the power of administering equitable 
 remedies was still, in more than one State, altogether 
 lacking or rudimentary. Traces of the old prejudice 
 may be found even in much later American writers. 
 We have to remember, however, that the Common 
 Law itself found but little favour in the eyes of the 
 Pilgrim Fathers and their successors. For a time it 
 was in danger of being replaced by the Pentateuch, 
 and its reception was precarious, even beyond the 
 Puritan commonwealths of New England, down to the 
 eighteenth century.^ We have also to remember in 
 extenuation that for some little time after the Restora- 
 
 1 S. D. Wilson, " Courts of Chancery in the American Colonies," Essays 
 in Anglo-American Legal History, ii. 779 ; Fisher, " The Administration 
 of Equity through Common Law Forms," ibid. ii. 810 ; Reinsch, " English 
 Common Law in the Early American Colonies," ibid. i. 369. 
 
VII THE TRANSFORMATION OF EQUITY 195 
 
 tion Englisli Common Law judges themselves had 
 not got clear of the old notions about equity, and 
 wondered what it should have to do with precedents. 
 
 In our own time, it is almost needless to say, courts 
 of equitable jurisdiction wholly disclaim any such 
 roving powers of dispensation and administrative 
 interference as were exercised by the mediaeval Chan- 
 cellors. A judge of the Chancery Division can in plain 
 terms deny that his Court is a Court of conscience.^ 
 It would be beyond my present scope, and beyond my 
 competence, to look for any similar process of trans- 
 formation in other systems of law ; but the case of 
 droit administratif in France is so near at hand and so 
 generally known that I may allow myself to mention it. 
 The semi-political jurisdiction of the Conseil d'Etat, 
 established under the First Empire in the interest 
 of the Government rather than of the citizen, has 
 by this time acquired a perfectly judicial character, 
 and it is said that the result is at times better for 
 the suitor than what he could look for under the 
 ordinary law. 
 
 During the last two centuries the scientific con- 
 struction of equity jurisprudence in England has been 
 in the hands of a highly specialised section of the 
 Bench and Bar, concentrated in these very precincts 
 of Lincoln's Inn where we are sitting. Practitioners 
 of the common law regarded equity much as the lay 
 people regarded all legal science, that is, as an in- 
 scrutable kind of magic, and rather black than white. 
 Even since the jurisdiction of our present Supreme 
 
 1 Mr. Justice Buckley [now Lord Wrenbury] [1903], 2 Ch. at p. 195, 
 
196 ESSAYS IN THE LAW to 
 
 Court in all its branches has been made uniform this 
 frame of mind has hardly become extinct, and there is 
 still something esoteric about the doctrines of equity 
 and conveyancing. The whole of the ground sacred 
 to these mysteries would be included in a radius of 
 five hundred yards, or for abundant caution let us say 
 metres, drawn from this Old Hall of Lincoln's Inn, 
 within or near whose walls the law of the Court of 
 Chancery was discussed and settled by several genera- 
 tions of lawyers. 
 
 APPENDIX 
 
 A NOTE ON SHY LOCK v. ANTONIO^ 
 
 The law of Shakespeare commentators, among whom at least 
 one or two might have known better, is a marvellous thing. 
 Combined with their determination to take Shakespeare 
 seriously at all costs, even when he is most comic, it has led 
 them strange dances. .In the present case they have failed to 
 perceive the very first objection, which of itself is fatal, to 
 seeking in this trial an image of either real or ideal justice. 
 No court in the civihsed world ever undertook to administer 
 any such specific remedy as Shylock here demands. "What 
 if the penalty of his bond had been of the same kind, but free 
 from any grave harm, such as that Shylock might shave 
 Antonio's head ? The Court would have said : " Then you 
 may shave him, and if he brings an action for battery your 
 bond will support a plea of leave and Hcence. Meanwhile 
 you need no judgement, and we are not to help you to shave 
 him, much less shave him for you. Demurrer allowed with 
 costs." If Roman creditors ever did cut up a debtor (which 
 
 1 1914, L.Q.B. XXX. 175. The latter part of this note, which dealt 
 with a learned contributor's suggestion that Shylock had no real intention 
 of taking the pound of flesh, is not reprinted. 
 
vn THE TRANSFOEMATION OF EQUITY 197 
 
 Aulus Gellius did not believe) they did so without aid of the 
 Court. We need not consider whether the Shylock theme 
 comes from some garbled version of that very clause of the 
 XII. Tables, partis secanto, or is an independent folk-tale 
 derived from a similar customary tradition. As it stands, 
 in any case, it confounds two different stages in the develop- 
 ment of law, those of sanctioned self-help and of judicial 
 execution. 
 
 Waiving this objection, assuming the Court to have 
 ample powers of amendment, and going as near the 
 Shakespearian text as justice will allow, one might offer 
 something Uke the following as an abstract of the proper 
 judgement. 
 
 Declare the bond void at law. (No man can consent to 
 be maimed except in the way of necessary surgical operation 
 to prevent something worse. There is no question of equity 
 in any technical sense.) 
 
 Judgement for the plaintiff for three thousand ducats and 
 interest at the current rate, as on a simple contract debt. 
 
 But, tender of this having been refused in Court, costs to 
 be paid by the plaintiff. 
 
 Plaintiff is in contempt for abusing the process of the 
 Court, and Uable to summary fine and imprisonment. His 
 contempt is pardoned at the defendant's suggestion on the 
 terms of making a proper settlement on Jessica. There 
 might be a hint that the plaintiff was lucky to escape a 
 criminal prosecution. 
 
 Now Shakespeare had picked up quite enough law to know 
 that the Doge's procedure, prompted by the supposed Bal- 
 thasar of Rome, was absurd from beginning to end. But if a 
 young gentleman of the Temple or Gray's Inn, admitted by 
 favour to a rehearsal, had said : " Master WiUiam, there 
 never was a court in Christendom, save our Lord of Misrule's 
 at Christmastide, would serve either Christian or Jew so, and 
 you know it as well as I do," would Shakespeare have been 
 put out ? Not at all. I conceive he would have answered 
 in effect : " My dear man, I am a maker of plays, not of 
 law-books ; I wanted a good scene, not justice. The people 
 wiU think it plausible enough for what a Venetian Star 
 
198 ESSAYS IN THE LAW vn 
 
 Chamber ^ might have done in old times. Judge it by the 
 performance, and see if I carry it not so that they take it all 
 for law and gospel." (Which they have done accordingly to 
 this very day.) — " But, WUl, what of Gratiano's gibe about 
 the twelve godfathers, after Shylock has been condemned 
 by the Doge without a jury 1 Will you justify that ? Come, 
 'tis a scurvy jest." — " Why, in your ear, so it is. And yet, 
 if you talk law by the card, the Star Chamber can line and 
 pillory a man, but may not hang him. But what 1 the 
 groundhngs' ears must be tickled, and my Jew must pass with 
 them for a red-bearded villain, such as I took him from the 
 Italian book. 'A grew in my hands, now, to a man, I can 
 scarce tell how, till I could almost love him. Farewell, sir, 
 Burbage calls me." 
 
 [Another vulgar error is to take Portia, posing as Balthasar, 
 for Antonio's advocate. She is there as a judicial assessor, 
 and speaks throughout on behalf of the Court : the appeal 
 to Shylock's sense of mercy, being really a judicial waraing 
 that he will do better not to insist on the letter of his bond, 
 but falling on deaf ears, is, apart from its eloquence, a fine 
 stroke of dramatic irony.] 
 
 ^ If Shakespeare thought of any EngHsh court at all as analogous 
 to the Doge's, it must have been the Star Chamber, which used civilian 
 procedure (including interrogatories, see Portia's last speech in Act v.) and 
 inflicted fines and corporal penalties without a jury. 
 
VIII 
 
 ARCHAISM IN MODERN LAW^ 
 
 Legal solemnities of all kinds are proverbially 
 conservative. In ceremonial acts and observances, 
 in necessary or accustomed modes of expression, in 
 the " common forms," as we call them south of the 
 Tweed, or " juridical styles," as I am learning to call 
 theni here, which embody so much learning, caution, 
 and experience of human afiairs, in the very outward 
 garb of judges and advocates, one may find, sometimes 
 plainly stamped, sometimes half effaced, the marks 
 of ideas and customs that have long ceased to exercise 
 any practical influence. It would not be difficult 
 to collect examples of this kind on either side of the 
 Border. There are few departments of law where 
 some stubborn bit of archaic form has not stood out, 
 down to times within our own memory if not to 
 this day, like a pile of ancient rock, weathered and 
 denuded, but not yet worn down to the level of the 
 plain where men dwell and work. One of our very 
 commonest English forms, used by thousands of 
 people of every condition and every degree of learning 
 
 ' An address to the Glasgow Juridical Society, Bee. 21, 1892, published 
 in L.Q.B. ix. 271. 
 
 199 
 
200 ESSAYS IN THE LAW 
 
 or ignorance, is the most venerable of all. The words, 
 " With this ring I thee wed," take us back to the 
 oldest Germanic laws and customs of which we know 
 anything. The wedding-ring is not a mere symbol, 
 it represents a vital condition of the contract. It 
 is a vadium, a piece of a system in which there was 
 yet no room for the more modern and subtle Roman 
 doctrine of consent sufficing to form an agreement. 
 Our Anglican marriage service dates, in all its essen- 
 tials, from a time when a contract to be performed 
 in even the proximate future could be secured, so 
 to speak, only by an elaborate system of outworks 
 in the way of surety and pledge.^ Again, it is 
 pleasing to compare the Northern ultima ratio against 
 an obstinate denier of justice, whereby he was " put 
 to the horn " as the king's rebel, with the " com- 
 mission of rebellion," which formed a part of the old 
 English Chancery process. While these forms existed 
 as part of ordinary practice it might still be said that 
 there was something extraordinary and almost mys- 
 terious about the king's justice. Besides the justice 
 which was the common right of the subject, there 
 was a power in reserve to overcome special obstacles 
 and make an example of great offenders who trusted 
 in their greatness to defy the law. When that horn 
 of Scots justice was last really sounded I have not 
 had time to learn, but its name brings before us the 
 days when a whole jurisdiction lay within the compass 
 of a horn-blast, needing no horn of Roland, but only 
 
 1 See the Anglo-Saxon and later Continental forms appended to Sohm's 
 Das Eecht der Eheschliessung, Weimar, 1S75. 
 
vm AECHAISM IN MODERN LAW 201 
 
 such as tlie plain wayfarer might carry with him 
 to proclaim himself an honest man and no roving 
 cattle-thief. But, however tempting it might be to 
 linger in this region of picturesque survivals, it is 
 not exactly there that I shall invite you to spend 
 this hour of professional diversion (for such are the 
 diversions of lawyers), but among matters of antiquity 
 that have entered more deeply into the substance of 
 the law. Both in Scotland and in England we find 
 inveterate archaisms either existing in rules of the 
 law still in force, or having existed late enough to be 
 set forth by the classical text- writers of the eighteenth 
 century in the full light of their rationalising method. 
 In almost every case it is or has been sought to justify 
 such rules by more or less ingenious reasons of justice 
 or public policy which certainly have nothing to do 
 with the historical origin of the rules, and little, if 
 anything, to do with the fact of their persistence in 
 modern times. Those who rightly perceived that 
 reasons of this kind would not serve nowadays have 
 been apt, on the other hand, to assume that there 
 never were any other reasons. Our ancestors have 
 accordingly been credited mth all but miraculous 
 foresight, and charged with barely credible stupidity. 
 Blackstone made them out a little lower than the 
 angels, Bentham little better than the beasts. In 
 truth, I should conceive they were not much better 
 or worse, wiser or more foolish, than we who have 
 come after them, so far as natural ability and good 
 intentions went. Like us, they were pressed with 
 manifest evils of divers kinds, and applied such 
 
202 ESSAYS IN THE LAW vm 
 
 remedies as their skill and knowledge could devise. 
 Like us, they deemed their burdens greater than 
 those of any former generation, and their inventions 
 more brilliant and beneficent. I need not remind 
 you, the fellow-citizens of my learned friend Mr. 
 Neilson, who has made the subject of Trial by Combat 
 his own, that Glanvill, celebrating the provision of the 
 Grand Assize as an alternative for the duel, is as proud 
 as any modern popular reformer. Like us, in short, 
 our mediaeval forefathers made laws and maintained 
 justice as best they could, and when we consider 
 how feeble were the powers in that behalf of any 
 prince or commonwealth in Europe only a few cen- 
 turies ago we shall be more disposed to wonder how 
 they did so well than that they did not do better. 
 Being mortal, they made their share of mistakes. 
 Like us, they sometimes found them out in time, 
 and sometimes not. Now and again they lived and 
 died in the belief that the worst of their weU-meant 
 blunders were their greatest triumphs, and cheerfully 
 left posterity to mend or endure them. Probably 
 they were not unlike us in this respect also, though, 
 by the nature of the case, we shall not know it in 
 this world. 
 
 Before we come to examples let us endeavour to 
 realise something of the general features of early 
 Teutonic law. Conceive yourselves, if you can, 
 living in a society where courts are held and judge- 
 ments given, but the fruits of judgement are left 
 for the successful party to gather by his own efforts. 
 " Diligence " has not become in fact, any more than 
 
AECHAISM IN MODEEN LAW 203 
 
 in name, a specific part of the order of public justice, 
 and even the successful suitor must rely for the most 
 part on his own diligence in the sense of that word 
 which alone is recognised in common discourse. A 
 man who wilfully and persistently refuses to do right 
 to his neighbours or obey the dooms of the Court 
 may be outlawed in the last resort, and dealt with as 
 a public enemy. But great men and their followers 
 will often take this risk rather than submit to an 
 adverse judgement. In Iceland, indeed, we find at 
 a comparatively late period that contending parties 
 may take up arms and break from litigation into 
 petty war at the seat of judgement itself. In Wessex, 
 in Alfred's time, the pursuer of a lawful feud might 
 lay siege to his adversary and deliver an assault if 
 he held out after due warning. Law is not yet the 
 active minister of justice, but rather a formalised 
 voice of the popular conscience declaring .to each 
 man the point at which he may without blame use 
 whatever power he has to do himself right. Form is 
 not wanting, far from it. Procedure is elaborate 
 and ceremonial almost in proportion as the direct 
 authority of the tribunal is weak, and proof is as 
 rigidly formal as anything else. Rules of evidence 
 in the modern sense do not exist. It would seem, on 
 the contrary, as if the ingenuity of early Teutonic 
 sages had exhausted itself to avoid the responsibility 
 of forming any opinion whatever on a matter of dis- 
 putable fact. There is a prescribed way for a party 
 to prove his case or to clear himself. If the fixed 
 conditions are once satisfied, the proof is conclusive. 
 
204 ESSAYS IN THE LAW vm 
 
 It may well be that our ancestors of fifteen or 
 eighteen centuries ago would not have accepted 
 any merely human and individual judgement in 
 matters of opinion and belief. It is said that their 
 descendants in the North of England do not always 
 accept the decision of the umpire at a football match. 
 Perhaps the ancient Germans acquiesced in what 
 seem to us arbitrary and barbarous methods of 
 determining an issue, not because they believed in 
 them as guides to the truth ^ much more than we do, 
 but because they could use no process that was not 
 self-acting, and had no practical power of sifting 
 facts. Perhaps the search after truth by any ordinary 
 means of inquiry seemed to them too precarious and 
 complex for the purpose of settling a judicial con- 
 troversy where the result had to be made, above all, 
 certain. At any rate there was no leading of evidence 
 in the modern sense. Oath was not the warranty or 
 sanction of a witness's account of facts, but an 
 operative proceeding ; it might be for the pursuer a 
 necessary condition of his claim to be heard, for the 
 defender (when multiplied by the proper number of 
 oath-takers) a final and conclusive discharge. Most 
 curious of all to modern eyes is the fact that the 
 extreme technicality and rigidity of ancient laws is 
 not the work of professional ingenuity ; for there 
 is not any legal profession. There are no trained 
 judges, save so far as bishops and other clerkly 
 
 ^ There are distinct indications that the Lombard princes would have 
 abolished trial by battle if they could ; and the ostensible reason for intro- 
 ducing it was the preYalenoe of perjury. 
 
ARCHAISM IN MODERN LAW 205 
 
 persons in high places may have a tincture of Roman 
 or Romanised learning ; and as for advocates, there 
 is so little thought of them as an established order 
 that it is a matter of grave difficulty for any party to 
 appear otherwise than in person. 
 
 What has just been stated is, to the best of my 
 knowledge, a sober and unvarnished outline of such 
 judicial institutions as were to be found in this island 
 and the greater part of northern and western Europe 
 about a thousand years ago. Now, let me turn 
 (protesting, nevertheless, that I speak as a layman 
 in Scots law) to the rules of criminal pleading in 
 Scotland as late as the Restoration. I learn from a 
 received text-book^ that down to the year 1669 it 
 was a principle of the Courts, evaded in practice 
 only by shifts and fictions, that a defence contrary 
 to the averment of the libel could not be allowed. 
 An alibi was regarded as a kind of preliminary 
 exception by the prisoner — ^panel, I should say — and 
 at one time it was actually the practice to take the 
 proof of this or any similar special defence before 
 hearing the prosecutor. And this is Hume's explana- 
 tion of the rule — " The notion of a conjunct probation 
 of the libel and defences before the assize was thought 
 too dangerous to be admitted. The prerogative of 
 proving, and the choice of the witnesses, were to be 
 assigned to one of the parties only ; and on the 
 evidence taken for him the issue must entirely 
 depend." I do not pretend to know the mediaeval 
 history of the rule, and if I tried to investigate it 
 
 ' Hume, Comm, U- 297-8 (ed. 1843). 
 
206 ESSAYS IN THE LAW ^i 
 
 with an. EnglisL. lawyer's imperfect knowledge and 
 appreciation of Scottish authorities I should almost 
 certainly go wrong in details, if not altogether. But, 
 as the thing stands at a time little more than two 
 centuries back, it is a most striking reproduction of 
 the archaic doctrine of proof which was once common 
 to all Germanic law. Proof and evidence are not 
 contentious, not a process of eliciting the truth by 
 examination and cross-examination from the various 
 and perhaps conflicting accounts of witnesses ; they 
 are as much one-sided acts of the party as pleading. 
 The party who can first put himself, so to speak, in 
 possession of the Court is in the better plight ; for 
 the other has no chance of interrupting him, and if 
 he carries his proof through according to the rules 
 the Court is bound to give judgement for him. If 
 he fails in any prescribed point the Court must 
 equally give judgement against him without regard 
 to the general merits. The whole cause is staked on 
 the issue of the party's proof, just as down to a much 
 later time, in England, it might be staked on the issue 
 of a single point of pleading, remotely, or not at all, 
 connected with the real matter in difference. Quite 
 in the spirit of this view we find that Hume expressly 
 speaks of the prerogative of proving. A modern 
 lawyer speaks of the burden of proof, and will be 
 astute to find out as much as he can (which, in our 
 latest English procedure, is perhaps more than he 
 ought) of the adversary's intended proofs before he 
 enters upon his own. Here, then, we have in Scot- 
 land, long after the Courts have taken upon themselves, 
 
vm ARCHAISM IN MODERN LAW 207 
 
 to brave the perils of a serious endeavour to arrive at 
 tlie truth, of disputed facts, the ghost of the ancient 
 formal and single proof not only walking but giving 
 serious trouble. 
 
 An ingenious young lawyer, Mr. Salmond, of the 
 New Zealand Bar, has lately pointed out ^ that even in 
 the latest civil and criminal procedure of the common 
 law the old Germanic notion of judicial proof has left 
 its mark. Trial by jury was, in its beginnings, only 
 one possible mode of proof, and, like all archaic modes 
 of proof, it was conclusive. To this day the verdict of 
 a jury cannot in strictness be appealed from. I speak 
 only of English practice, as that in which the functions 
 of the jury have been most fully preserved. In 
 criminal justice, where archaism is even more per- 
 sistent than on the civil side, there is no remedy by 
 regular process of law, but only through the pardoning 
 power of the Crown, against a wrong verdict of guilty, 
 and none at all against a wrong verdict of not guilty. 
 The same rule prevailed for centuries in civil causes 
 also, and was evaded first by devices of pleading in- 
 tended to multiply questions of law for the Court, 
 and leave as little as possible for the jury, and later by 
 the method of ordering a new trial. The judges would 
 not take upon themselves to reverse or annul a verdict 
 which they thought perverse or due to a wrong direc- 
 tion given in matter of law by the presiding judge, 
 but they could and would refuse to give efiect by the 
 final judgement of the Court to such a verdict. They 
 
 1 Essays in Jurisprudence and Legal History, by .John W. Salmond, 
 .London, 1891. [The learned author is now on the Bench.] 
 
208 ESSAYS IN THE LAW 
 
 remitted the case for a new trial, and awaited tlie result 
 of tlie whole operation being repeated with another 
 jury. The parties might be saddled with huge delay 
 and expense, but the sanctity of a verdict remained, 
 in the latter, inviolate. At last, under the boldly in- 
 novating system of our Judicature Acts, the Court of 
 Appeal has a discretion, though not an unlimited 
 discretion, to give the final judgement which it thinks, 
 ought to have been given in place of ordering a new 
 trial. 
 
 Again, there is one form of proof or evidence ia 
 constant use on both sides of the Border which bears 
 pretty plain marks of its antiquity — I mean the deed 
 or charter. It is not of Germanic origin ; indeed, it is 
 clerkly and Eoman. Strictly speaking, it is as much 
 an exotic as the methods of your Consistorial Court or 
 our Court of Chancery. But it came in early, and had 
 to be fitted into Germanic procedure while ideas of 
 procedure were still rigid. The charter found its place 
 accordingly as a mode of proof ; and it was conclusive, 
 not because it was a specially solemn or considered 
 expression of the party's will, but because degrees of 
 probative force were not recognised, and if admitted 
 at all, it could be nothing else than conclusive. In 
 the time of Glanvill, and of the " Regiam Maiestatem " 
 which attests that down to the thirteenth century 
 English and Scots law had not diverged from their 
 common Anglo-Norman stock, writing and battle, 
 scriptum vel duellum, are the two recognised final 
 modes of determining an issue in the King's Court. A 
 deed is not conclusive nowadays, but it still retains 
 
vm ARCHAISM IN MODERN LAW 209 
 
 peculiar qualities and virtues derived from its earlier 
 history. In England its operation is a kind of stand- 
 ing protest against our modern theory of contract, 
 with which it stubbornly refuses to be reconciled. In 
 Scotland you have been more faithful to the archaic 
 t3rpe than we have. With us the attestation of a deed 
 is only matter of habitual prudence and convenience ; 
 with you it is a necessity. But when you have got 
 a properly attested deed, I understand that in this 
 kingdom it proves itself without external evidence, 
 whereas in England we have so far forgotten our old 
 lines of judicial thought as to treat the execution of a 
 deed as a fact which, unless admitted, must be proved 
 like any other fact. On the other hand, we have 
 stoutly retained the Anglo-Norman solemnity of the 
 seal. It is true that the whole point of the seal in the 
 twelfth or thirteenth century, and even later, was its 
 individuality ; so long as a man kept his seal carefully 
 he was in no danger from forged grants. In modern 
 times the seal has become an empty formalism, and its 
 use has been generally dispensed with by statute in the 
 American common - law states and in our English- 
 speaking colonies. Perhaps we have indirectly de- 
 rived some good from writing not under seal being 
 left, as a thing of no solemnity, to find its place as best 
 it could among common and modern transactions. 
 Our rules as to the relative value of written and oral 
 evidence are quite rational and fairly simple. 
 
 On the other hand, we can boast of having pre- 
 served in English criminal law one of the very oldest 
 pieces of Germanic procedure, transformed and recast 
 
210 ESSAYS IN THE LAW ^m 
 
 in the great constructive period of the common law. 
 The grand jury is still an indispensable part of our 
 system, though now scarcely more than a ceremonial 
 one. Sometimes, in the case of a vexatious or hastily 
 undertaken prosecution, it saves an innocent person 
 the pain of a public trial. On rare occasions it may 
 assume a semi-political office and ease off impending 
 friction between the law and public opinion. I well 
 remember one such occasion in 1867, after the Jamaica 
 riots, when certain officers were indicted for murder in 
 trying and capitally convicting the supposed leader of 
 the rebellion under colour of martial law without any 
 regular jurisdiction either civil or military, and on 
 evidence which a Court of law could not have received. 
 The late Lord Chief Justice Cockburn expounded the 
 law to the grand jury with much learning and elo- 
 quence, and strongly in favour of finding a true bill. I 
 heard the charge, and very impressive it was, though 
 perhaps the Chief Justice's style and manner were 
 open to the criticism that they were more forensic than 
 judicial. In point of law I believe he was right. But 
 the grand jury threw out the bill, and in point of fact 
 I believe they were right too, for such was the pre- 
 valent public feeling, whether right or wrong, that a 
 petty jury would certainly not have convicted, and the 
 trial would only have prolonged a bitter controversy 
 without vindicating any principle of justice. As a 
 rule, however, the grand jury looks nowadays rather 
 like a fifth wheel on the coach, and grave and learned 
 persons have in the course of late years proposed more 
 than once or twice to abolish it. For my own part I 
 
vin ARCHAISM IN MODERN LAW 211 
 
 am inclined to think tliat such, a measure would do 
 no real good, would do some, though not much, harm, 
 and would ofiend a far greater number of people than 
 it pleased. At all events one would be sorry to lose, 
 without strong reasons, so venerable a link with anti- 
 quity. For the grand jury may be said to represent, 
 in substance, though hardly by direct succession, that 
 accusation by the common report of the country 
 which, in the early Germanic plan of criminal justice 
 was no mere ornament or safeguard, but a mainspring 
 of the machine. Among the ordinances made at 
 Wantage in Berkshire by ^thelred and his Witan for 
 the northern parts of England, nearly nine hundred 
 years ago, we find this provision — " Let a Court be 
 held in every wapentake, and let the twelve eldest 
 thanes go out, and the reeve with them, and swear 
 upon the halidome put into their hands that they shall 
 accuse no innocent man, nor conceal no guilty." ^ 
 Now these twelve thanes are certainly different in 
 many ways from what we now understand by a grand 
 jury. The grand inquest representing the body of a 
 county seems to date only from the fourteenth century. 
 These twelve men represent a wapentake (as the jur}' 
 of accusation under the Assize of Clarendon repre- 
 sented the hundred long afterwards), and it is by no 
 means clear that the law and procedure of the ordin- 
 ance in which they are mentioned is not Danish rather 
 than English. Still, it may not be an idle curiosity 
 
 1 yEthelr. iii. 3, Liebermann, Ges. der Angels, i. 228, of. the plaintiff's 
 oath in Schmid's ed. Anh. x. 41, p. 406, and the witness's oath (13th cent.) 
 in The Court Baron (Selden Soc.), p. 77, 
 
212 ESSAYS IN THE LAW vm 
 
 to compare the oath, prescribed to them with that 
 which I have myself administered on Circuit as judge's 
 marshal, " You, as foreman of this grand inquest for 
 our Sovereign Lady the Queen and the body of this 
 county, shall diligently inquire and true presentment 
 make of all such things as shall be given to you in 
 charge or otherwise come to your notice touching this 
 present service." Thus it is contemplated as possible 
 that the grand jury may present offenders of their own 
 knowledge as well as indict them upon the prosecution 
 of some person, and in law there is certainly nothing to 
 prevent them from doing so, though it has long been 
 out of use. The form goes on, " The Queen's counsel, 
 your fellows', and your own, you shall observe and 
 keep secret. You shall present no naan for env)^, 
 hatred, or malice, neither shall you leave any one un- 
 presented for fear, favour, affection, gain, or reward." 
 This is really nothing else in substance than an amplifi- 
 cation of the oath appointed for those twelve leading 
 thanes in the dooms of ^thelred. But what is still 
 more curious is that the ampler form is really the 
 older, for in a Rhenish ecclesiastical manual of the 
 early tenth century we find, in a procedure evidently 
 modelled on the Frankish royal inquests, that the jurors 
 (so expressly called, it appears, for the first time) are 
 sworn to conceal nothing from the bishop or his com- 
 missioner, " nee propter amorem, nee propter timorem, 
 nee propter praeniium, nee propter par entelam." ^ Medi- 
 aeval English forms are simpler, so far as they can be 
 
 1 Eegino abb. Prumiensis de synod, causis, eto.,ed. 1840, 207 ; Brunner, 
 Schwurg, 463, 
 
vm ARCHAISM IN MODERN LAW 213 
 
 traced.^ We find in Britton a clause that the jurors 
 shall not omit their duty for any love, hatred, fear, 
 gift, or promise. In other forms there is only a 
 promise to answer truly, and sometimes also to keep 
 the King's counsel secret, of which " the Queen's 
 counsel, your fellows', and your own, you shall observe 
 and keep secret" is the modern equivalent as I knew 
 it. As late as 1649 the form given in a compilation 
 called the Book of Oaths is very short and simple. The 
 longer form, which I have given from memory, was 
 certainly the current one on the Western Circuit a 
 score of years ago. There is also, I believe, a shorter 
 form in common use, containing, however, all the 
 same points in substance. It would seem that the 
 fuller form came in soon after the Restoration, for the 
 language cannot well be m.uch later. I confess myself 
 at a loss, at present, to guess how and where it had 
 been preserved, or from what custody it was produced, 
 when its phrases were restored to English use after an 
 interval of some centuries. Perhaps it was a piece of 
 deliberate antiquarianism ; we know that the latter 
 seventeenth century was an age of antiquaries. Prob- 
 ably enough different forms were used on different 
 circuits, and possibly there may have been continuous 
 precedents of the more amplified type in ecclesiastical 
 proceedings. In any case we are sure of two things, 
 and there is something to be learnt from both of them. 
 Notwithstanding the singular resemblance of the oath 
 
 1 Oaths of the twelve knights before justices in eyre, Bracton, fo. 116, 
 Britton, i. 22, and the formula, " De sacramento ministrorum Regis " in 
 Stat, of the Realm, i. 232. 
 
214 ESSAYS IN THE LAW vm 
 
 of the Grand Inquest in its latest form, that to which 
 I can myself bear witness, to the earliest English 
 formula of a like sort, we cannot prove that the two 
 are connected by any continuous history of EngUsh 
 usage ; the reappearance of these CaroHngian clauses 
 would seem to be not a survival, but a revival or out- 
 crop, which may or may not be capable of complete 
 explanation. The second point is that this, like 
 everything else about the jury system, does not belong 
 to the old Germanic folk-law. With the early West- 
 phalian example before us we can have no doubt 
 that the form as well as the substance is due not to the 
 untutored wisdom of folk-moots but to the ordinances 
 of Franliish princes, advised by counsellors whose 
 learning was not Teutonic but Latin. Yet what a 
 pretty story of the fidelity of English custom to primi- 
 tive Anglo-Saxon usage might we not have made with 
 a little dexterous and almost pardonable omission ! 
 We should only have had to minimise the Danish 
 features of the ordinances made at Wantage, to mani- 
 pulate the thirteenth-century evidence, making the 
 most of Britton and the least of the other books, and to 
 treat the form printed in 1649 as a transient innova- 
 tion of irreverent Commonwealth men. As for the 
 most fatal piece of evidence, the Westphalian in- 
 structions for an Episcopal visitation, it is quite a 
 new-fangled thing for English lawyers, even if they 
 profess a taste for historical antiquities, to wander of! 
 to Khineland monasteries and discover how much 
 business-like writing was done in the so-called Dark 
 Ages. We have now seen how dangerous it is to put 
 
vm AKCHAISM IN MODERN LAW 215 
 
 one's trust in coincidences between things remote in 
 time and place without verifying the intermediate 
 links. Let us pass to another example. 
 
 Our petty jury, corresponding to your assize, has 
 a more archaic appearance in one respect. We do not 
 accept the verdict of a majority, though in a civil 
 cause the parties can accept it by consent, as indeed 
 they can dispense with a jury altogether, a thing which 
 was sometimes done on circuit even before the Judi- 
 cature Acts. The principle that in the proceedings of 
 assemblies a vote passed by a majority is binding, in 
 the absence of more special regulations, appears vener- 
 able to us nowadays. But it is by no means imme- 
 morial. We read in Prof. Kovalevsky 's Modern Customs 
 and Ancient Laws of Russia that " the privilege 
 enjoyed in our days by the majority was quite un- 
 known to the primitive folk-motes." The decisions 
 of the early Slavonic meetings were required to be, or 
 rather to seem, unanimous ; "in case of difierence of 
 opinion, the minority was forced to acquiesce in that 
 of the majority unless it could succeed in persuading 
 the majority that they were in the wrong." Dis- 
 sentients might be fined or even beaten. The dissent- 
 ing juryman, 1 need not remind you, is one of the stock 
 figures in the humours of modern English procedure. 
 He has been immortalised by a born Scot of whom 
 both kingdoms are proud, by one of the few who could 
 ever boast of having conquered him, by no less a 
 victor and reporter than Thomas Carlyle. Is he 
 indeed the true lineal descendant of the stubborn 
 Slav freeman who was reduced to unanimity by being 
 
216 ESSAYS IN THE LAW vm 
 
 beaten with rods or thrown over a bridge ? One is 
 tempted to say so. But we have here, it seems to me, 
 only another example of the temptations that have to 
 be resisted in the historical study of institutions ; and 
 perhaps the example is all the better for occurring in a 
 matter of no great importance in itself. To begin 
 with, the jury is not a primitive or popular institution 
 at all. It has nothing to do with a folk-mj.oot, and it 
 never became naturalised in the old local and popular 
 courts. What is more, unanimity is not required in 
 the grand jury, which is the older institution of the 
 two. There is, indeed, an archaism in this matter, 
 but an archaism of a different order ; perhaps it is not 
 less respectable in its way. We have to do with the 
 sanctity of a particular number. Fixed numbers run 
 through all customary laws, and, for some one or more 
 of several possible reasons, we find twelve in special 
 favour among our Germanic ancestors. Even duo- 
 decimal reckoning makes a certain place for itself in 
 spite of the fact that we are born with only ten fingers. 
 The long hundred of six score becomes an important 
 factor in land measurement ; it is the normal number 
 of acres in the hide (if one will be content to accept the 
 few precise and definite statements we have, rather 
 than construct elaborate hypotheses from ambiguous 
 data, and then reject the definite ones for not agreeing 
 with those hypotheses). A man put to his oath con- 
 stantly has to clear himself mth the twelfth hand, 
 that is, with eleven other men's oaths to back his own. 
 So it came to be held, though not without hesitation 
 and attempts to get an easier rule admitted, that in 
 
vni ARCHAISM IN MODEEN LAW 217 
 
 the oath of twelve men, and not less, a verdict should 
 be established.^ We know that people had no love 
 for doing suit of court in the Middle Ages, and no more 
 love for being jurors than they have now. The smallest 
 acceptable number of jurors accordingly became the 
 standard and only number in the petty jury from the 
 first or almost from the first. Twelve men sufficed, but 
 the verdict had to be the verdict of twelve, and there- 
 fore the twelve must be unanimous. And so they ha veto 
 be to this day. The law discreetly knows nothing of the 
 dialectic or other processes by which they become so.^ 
 Now I take up a specimen of a different kind. It is 
 almost painfully familiar to us Southrons, but for you 
 it may possibly have some little novelty. Thanks to 
 the sages of the law who flourished in the reign of King 
 Charles II., we live under a certain " Act for preven- 
 tion of Frauds and Perjuries," commonly called the 
 Statute of Frauds. It has been said that every line of 
 it is worth a king's ransom ; and it is certain that not 
 a few lines of it have cost some such amount to suc- 
 cessive generations of litigants during the two cen- 
 turies for which it has been in force. According to the 
 recent research of the Dean of your Law Faculty here,^ 
 
 ^ It was only in the first quarter of the fourteenth century that the 
 necessity of the twelve concurring was taken for settled law (Thayer, " The 
 Jury and its Development," Harv. Law Rev. v. 296-7). The method 
 originally prescribed for the Grand Assize (Glanv. ii. 17) of adding new 
 jurors till an unanimous verdict of twelve was obtained does not seem to 
 have been extended. Cp. Christian's note on Blackst. Oomm. Hi. 376, 
 whose criticism on this as on many other matters is remarkably sound, 
 having regard to his imperfect materials. 
 
 " See Owen v. Warburton, 1 Bos. & P.N.R. 326, 8 R.R. 817—" The Court 
 wni not set aside a verdict upon the afSdavit of a juryman that it was 
 decided by lot." 
 
 ^ Richard Brown, The Statute of Frauds in its relation to the Law of Scotland, 
 Glasgow, 1893. 
 
218 ESSAYS IN THE LAW vm 
 
 the workmanship is mostly Lord Nottingham's. It 
 does not seem to me to do that learned person much 
 credit. Anyhow, I have always understood that you 
 find life and business in Scotland pretty tolerable with- 
 out the Statute of Frauds. One of the most im- 
 portant and constantly discussed clauses has to do 
 with the sale of goods. A contract for the sale of 
 goods to the value of ten pounds sterling or more is 
 not " allowed to be good " unless one of certain con- 
 ditions is satisfied. The making of " some note or 
 memorandum in writeing of the said bargaine " is one 
 of them ; I have nothing to say of this at present. 
 The others are as follows : — " Except the buyer shall 
 accept part of the goods soe sold and actually receive 
 the same or give some thing in earnest to bind the 
 bargaine or in part of payment." What is the efiect 
 of this ? It is a piece of fairly modern legislation, 
 framed by persons who probably knew something of 
 Koman law, and almost certainly knew nothing of 
 Anglo-Saxon or any other Germanic legal antiquities. 
 Yet what it does is just to throw us back to the 
 mediseval Teutonic doctrine of sale, pretty much as we 
 find it in Glanvill and Bracton. Indeed, the state- 
 ment is not at all unlike GlanviU's. It expresses 
 notions equally imlike those of the Roman law and of 
 the modern Common Law. The contract is real, not 
 consensual. Agreement on the thing to be sold and 
 the price will not make a contract ; there must be part 
 performance on one side or the other, or at any rate 
 " something in earnest to bind the bargain " must be 
 given ; not as part payment, which is quite another 
 
ARCHAISM IN MODERN LAW 219 
 
 thing, still less as a fictitious or symbolic payment, but 
 as tbe price of the seller binding himself not to break 
 off before performance.^ There is not the least reason 
 to suppose that the framers of the Statute of Frauds 
 were Teutonic enthusiasts or had antiquarian inten- 
 tions of any kind. Wliat they intended, probably, 
 was to make reasonable allowance for the existing 
 habits of English buyers and sellers as they knew 
 them. Those habits had doubtless remained, among 
 country folk, practically unchanged for centuries. 
 Almost a century later Blackstone could speak of 
 shaking hands to bind the bargain as " a custom which 
 we still retain in many verbal contracts." But Black- 
 stone seems to compare this with giving earnest. It 
 really belongs to yet another branch of the history of 
 contract, to the history of troth-plight, affidatio, the 
 religious or g'wasi - religious obligation which, after 
 first supplementing the meagreness of secular law, 
 and then, in the hands of the Church, becoming a for- 
 midable competitor, was finally merged in the tem- 
 poral jurisdiction.^ And this brings us round again to 
 the very ancient marriage forms of which I spoke 
 at the beginning of this address. 
 
 The contract of sale, as explained by Blackstone 
 in the passage I have just referred to * may give us 
 
 1 In accordance with this conception, the seller only was bound by giving 
 of earnest down to the thirteenth century, and then only to the extent 
 of repaying double the earnest money. The buyer merely lost his earnest 
 money if he withdrew. Fleta, however, states a much more stringent custom 
 of merchants imposing a prohibitory forfeiture on the defaulting seller. 
 
 ^ Mr. J. H. Round has an interesting note on " affidatio in manu " in 
 the appendix to his Geoffrey de Mandeville (N)te T). 
 
 ' Comm. 11. 448. 
 
220 ESSAYS IN THE LAW ^m 
 
 a little more food for reflexion. " As soon as the 
 bargain is struck," says Blackstone, " the property of 
 the goods is transferred to the vendee, and that of the 
 price to the vendor." And a few pages above we read 
 that when A. contracts with B. to pay him £100 he 
 " thereby transfers a property in such sum to B. ; 
 which property is however not in possession, but in 
 action merely, and recoverable by suit at law." Now 
 Blackstone certainly knew as well as we do (and his 
 own explanatory words would prove it if proof were 
 needed) that A.'s promise to B. to pay B. £100 cannot 
 make B. the owner of any specific money of A.'s. 
 What then does he mean ? He is simply true to the 
 old principles of all Germanic law, which still underlie 
 the common law and its remedies in matters of pro- 
 perty, however much our modern language and habits 
 of thought may obscure them. Blackstone thought 
 and spoke in the terms of a system to which the Roman 
 dominium was foreign. The leading idea of Germanic 
 property law is not ownership, but possession and 
 rights to possess. Glanvill talks, it is true, of pro- 
 prietas in connexion with the writ of right, but what 
 he means is the right to be put in seisin. Strictly 
 speaking, the common law has no form of action which 
 can be compared to the Roman Vindication. The 
 claims to property which it recognises are founded on 
 disturbance or denial of possession, and it arrived only 
 by artificial methods at giving any remedy at all to 
 an owner who had never had possession. It would 
 require too much time and would take us too far into 
 purely English technicalities to enter here on the 
 
vm ARCHAISM IN MODERN LAW 221 
 
 proofs of tMs. But, whether the statement seems 
 novel or not, the conviction of its truth has grown 
 upon me steadily for some years, and I have no doubt 
 that the ancient Germanic notion of gewere or seisin 
 — possession warranted by law — is still at the bottom 
 of our common-law doctrines. Refinements and ex- 
 pansions have come inevitably. When once you 
 begin to protect and enforce a right to possess apart 
 from actual possession you are tending towards 
 dominium. We have refined in various ways on the 
 right to possess — making it for certain purposes, by 
 benignant fictions, equivalent to possession itself — 
 until there remains about it little or no practical differ- 
 ence from ownership as conceived by a Romanised 
 philosophy of law. Still the relation of the two orders 
 of ideas is more like that of a hyperbola and its 
 asymptote than that of two roads which, coming from 
 difierent directions, ultimately coincide. I must give 
 warning, in passing, that for my part I am not pre- 
 pared to admit that our Germanic point of view is 
 really less philosophical than the Roman. You will 
 hardly expect me to draw any definite conclusion from 
 these desultory instances. Perhaps we have seen 
 enough to show that tracing the pedigree of legal ideas 
 is ticklish work. The most tempting resemblances of 
 modern to ancient forms are often fallacious, and ideas 
 which are really of great antiquity may, on the other 
 hand, lie comfortably concealed in modern terminology. 
 One way and another there is a great deal of ancient 
 human nature about man, and it does not forsake him 
 when he determines to be rational and a lawyer. 
 
IX 
 
 JUDICIAL EECORDS ^ 
 
 If you open the, current Law Reports at a venture, 
 
 you will see just under the names of the parties at 
 
 the head of a reported case a collection of symbols 
 
 like this — 
 
 [1912 H. 938], 
 
 which presumably conveys no meaning whatever to 
 the lay people. This is what we call the " reference 
 to the record." It is the key to the original and 
 authentic documents containing the official history 
 of every step taken in the action from the issue of 
 the writ to the final judgement or other determina- 
 tion ; a history which may cover a period varying 
 from a few weeks in a matter of a simple money 
 claim (though such cases, I need hardly say, do not 
 concern the Law Reports) to several years if it is 
 a complicated administration suit in the Chancery 
 Division. For twenty years these originals are to 
 be found in the vaults of the Royal Courts ; after- 
 wards they pass into the custody of the Master of the 
 Rolls at the Record Office, where they are permanently 
 
 ' A lecture delivered before the Faculty of Law in the University of 
 London, February 26, 1913. Printed in L.Q.R. xxLx. 206, 
 
 222 
 
JUDICIAL RECOEDS 223 
 
 added to a series of judicial records unrivalled in tlie 
 world for their extent, antiquity, and continuity. 
 The selections of criminal and civil pleas whicli were 
 among the first publications of the Selden Society 
 contain entries of the year 1200. Through seven 
 hundred years and more there has been change of 
 many kinds external and internal ; and yet no violent 
 breach, unless the change from Latin to English in 
 the eighteenth century be counted for such ; but still 
 change enough. An ordinary English scholar who 
 knows classical Latin can no more read a judicial roll 
 of our antique fashion than he could read a Hebrew 
 roll of the Pentateuch, and an ordinary English lawyer 
 would have but little advantage over him. First the 
 script has to be mastered (and handwriting varied 
 through the centuries, not for the better) ; then the 
 business Latin of the Middle Ages, quite a living tongue 
 in its day, very different from the Latin of the schools 
 just because it was alive ; and lastly the matter has 
 to be understood. At this last lesson we are still 
 working. 
 
 Conversely we may guess that a thirteenth-century 
 judge, assuming him to have learnt modern English 
 and to be reconciled to the innovation of printing, 
 would be no less bewildered at the sight of our 
 twentieth-century files. I am not so sure, however, 
 that the guess would be right without qualification, 
 for in some things the whirligig of time has so brought 
 us round that we are much nearer than Blackstone 
 was to our mediaeval ancestors. If Henry of Bratton 
 could be taken through the rolls of the subsequent 
 
224 ESSAYS IN THE LAW ^^ 
 
 centuries he miglit well shake his head at the stiffen- 
 ing technicalities of the fourteenth century, grumble 
 at the flamboyant over-subtlety of the fifteenth, and 
 cry aloud at the enormous verbosity of the sixteenth. 
 When he came to the latest forms of Common Law 
 and Chancery pleading in the eighteenth century 
 — the time when Blackstone thought everything 
 almost perfect — he might peradventure break out, 
 clerk in orders and archdeacon though he was, into 
 such oaths as are reported a little after his time in 
 the mouth of Hervey de Stanton, nicknamed Hervey 
 the hasty: "Par le sanke qe dieu seignal if any 
 pleader had tried to pass off such a heap of jargon 
 on us, we should have said, and in rounder French 
 than your English, that if he did not tell us something 
 better in five minutes we should give judgement 
 against him." The guide (whom we must suppose 
 conducting the learned and Elysian author, not 
 without aid of supra-mundane speed and ease, through 
 a series of typical rolls picked out for his inspection 
 in the Record Office) would explain with deference 
 that nowadays pleadings are not settled by discussion 
 in Court. " So much the worse," Bracton (to give 
 him his conventional name) might reply : "all that 
 writing with no prompt judicial check has spoilt 
 your pleaders' common sense." Nor would he be 
 wholly mollified by an account of the modern inter- 
 locutory proceedings in judges' chambers which have 
 taken the place of the old dialectic passages between 
 the Court and counsel, so far as the place is sup- 
 plied at all. We may as well go on overhearing the 
 
JUDICIAL RECOEDS 225 
 
 conversation between Henry of Bratton and the 
 twentieth-century lawyer ; it may be the shortest 
 way to realise that there were many modern points 
 about the thirteenth century. 
 
 Henry of Bratton. Then I don't see where or how 
 your young men learn pleading. 
 
 Guide. Well, sir, to be quite frank, they do not 
 learn it ; but then there is very much less of it to 
 learn. 
 
 H. of B. How is that ? Here is a roll of Queen 
 Elizabeth before me, three centuries after my time, 
 and so far I. can only see that the tangle gets worse 
 and worse. And such writing ! we wrote a good 
 business hand, both justices and clerks, and set no 
 store by the fancy tricks of the papal chancery, 
 though I had to know those too. 
 
 6r. Truly, sir, I am no great expert, and yet I 
 can make shift to read the rolls of your masters and 
 companions ; but I have known it three men's work 
 to make out a roll of King Charles II. 
 
 H. of B. What was the Chancellor about that he 
 did not amend these matters ? It was his duty 
 to keep the forms of the King's Court in order, so 
 that the king might do true justice, as we read in 
 some mighty pretty verses writ by John of Salisbury, 
 who was a great clerk — ^but perhaps you have no 
 memory of him ? 
 
 G. Now I am sure you are jesting or trying to 
 catch me out in ignorance. If you and your com- 
 panions hear anything in Elysium you must have 
 heard that John of Salisbury acquired a European 
 
 Q 
 
226 ESSAYS IN THE LAW 
 
 reputation and was quoted by learned Italians as 
 Policratus Anglicus ; and our news travels slow i£ 
 you have not yet heard that his opus magnum is 
 excellently edited by an Oxford scholar with all 
 the honours of the University press. But for the 
 Chancellor, sir, there were stifi- necked folks who 
 would not let him invent anything : it was so already 
 in your time : surely you remember the Provisions 
 of Oxford and the oath by which the barons tied him 
 up ? And so he had to get a jurisdiction and a court 
 of his own, about which I suspect you know more 
 than you let me see, and the proceedings, while they 
 were never so formally precise as those of the Common 
 Law, became even more long-winded and cumbrous, 
 and quite as captious. 
 
 H. of B. So it seems, indeed. Here is eighteenth- 
 century writing ; it is from the time of my successor 
 Blackstone, who had the advantage of using his 
 mother tongue as a polished literary language, and 
 so surpassed me greatly in form. But when you 
 talk of mistakes in Roman law, now, you must re- 
 member in charity that Exeter was a very long way 
 from Rome, and I had to puzzle out my Azo mostly 
 by myself. Really I think Blackstone's dogmatic 
 and historical mistakes about Roman law had less 
 excuse than mine, for surely he might have consulted 
 doctors of the Civil Law at Oxford. 
 
 G. Very true, sir, but I could show you one 
 place where Blackstone was misled by a more learned 
 man than himself, no less a man than John Selden. 
 
 H. of B. Certainly we are all fallible. Anyhow 
 
JUDICIAL RECOEDS 227 
 
 my brotlier Blackstone was too easy-going wheri lie 
 tolerated this monstrous overgrowth of parchment. 
 
 G. Suppose we skip a century or so ; you may 
 find something to please you better. 
 
 H. of B. Why, this is printers' work ; plain 
 enough to me too, for it is not much rmlike my 
 grandfather's writing ; and the pleader sets out to 
 tell the story so that one can see at least what the 
 suit is about ; and most of the rubbishing jargon is 
 done away with. But at Westminster they are still 
 writing on parchment late in Queen Victoria's time, 
 it seems, and their forms are only in part more 
 intelligible. The Chancellor had got some way ahead 
 of the king's judges — I mean the queen's. But what 
 is this title of his that catches my eye at the head 
 of a printed bill ? Lord High Chancellor — of Great 
 Britain. 
 
 0. By your favour, sir, he had been so for about 
 a century and a half. 
 
 H. of B. Yes, I remember now, but the name of 
 Great Britain is a strange mouthful to a thirteenth- 
 century Englishman. We old fellows can hardly get 
 over our surprise at the Bishop of Durham no longer 
 being a great frontier chief, with the cares of a secular 
 principality, and Scottish foemen to provide agaiast. 
 It was little I heard tell of Scots in Devonshire, but 
 I met north-countrymen at the King's Court and 
 listened to their tales of border feuds and forays. 
 Well, the kingdom has grown out of all knowledge, 
 and our children have played, up and down the 
 world, the part of the gens robusta et longinqua et 
 
228 ESSAYS IN THE LAW 
 
 ignota foretold by Jeremy the prophet ; I have heard 
 talk of your judges having to learn strange heathen 
 laws. 
 
 G. That tale is elsewhere, sir. Of the King's 
 Council and what has sprung from it we can hardly 
 speak now, for it is a long matter. Let us pass on to 
 the latest records. 
 
 H. of B. Well done, young fellows ; this is better 
 still. I should not have thought you could clear 
 yourselves of all those cobwebs, and make for the 
 simpUcity I was trying to attain in my own time. 
 So you have got rid of the diversities of Courts, and 
 restored our lord the king in possession of his one 
 Curia Regis. Well done, I say again. 
 
 G. Now, sir, let us go back to your old roUs for a 
 moment. See here your own marks, which have 
 been brought to light again in these latter days, in 
 the margin of the cases you took out for your Note 
 Book. 
 
 H. of B. A good sight ; and better to see that 
 book well handled and made free of the world of 
 letters ; and best of all that the work was done by a 
 fellow west-countryman, almost a neighbour of mine. 
 
 G. I should guess, if it were lawful to guess, that 
 you have already had right good talk with Maitland. 
 
 H. of B. My young friend— for even when your 
 hair is turning grey you all seem very yoimg to me — 
 you shall not imitate the pleader who wanted to be 
 plus sage qe Dieux. We may not report the matter 
 nor the manner of our heavenly converse ; and you 
 would not understand it if we might. This visit of 
 
JUDICIAL EECORDS 229 
 
 mine is exceptional enough of itself, such, a thing as 
 does not happen nisi aliquando de gratia. But you 
 may salute for me the good clerk who found my book, 
 Paul the son of Gabriel whom Oxford has captured 
 from the far land of Muscovy. . . . 
 
 When that guide awoke he felt certain pricks of 
 conscience, wondering whether he ought to have 
 produced the Eules of Court and the White Book, 
 and how far Henry of Bratton's approval of our 
 simplified pleading might be damped by the con- 
 templation thereof. But it is certain in any case 
 that the White Book is not of record ; and therewith 
 his conscience was pacified. 
 
 This imaginary dialogue, which might be in- 
 definitely extended, may serve as well as any other 
 device to recall to us in a summary way what an 
 immense amount of legal and political history the 
 records of our courts have embodied, and the fact 
 that for much of it they are the real ultimate 
 authority. I will mention here a little technical 
 point for the sake of any student who may be puzzled 
 by it, as I was for a time. Sir G. Jessel once com- 
 mitted himself to the statement that the Court of 
 Chancery was not a court of record.^ The only reason 
 he gave was that the records were in the custody not 
 of the Chancellor but of the Master of the Rolls. 
 The statement is directly contrary to Blackstone's,^ 
 and, with great respect, the reason is doubly wrong. 
 First, according to general imderstanding and practice 
 the Master of the Rolls was only the Chancellor's 
 
 1 L.E. 20 Eq. at p. 347. ' Comm i. 68. 
 
230 ESSAYS m THE LAW ix 
 
 deputy, tlioiigli this was not free from controversy. 
 Secondly, the decisive mark of a court of record, 
 according to Coke's opinion given in two places, is 
 not that the judges of the Court keep the record, 
 but that the record itself is the only authentic and 
 conclusive proof of what the Court has done. It is 
 a minute question, for nobody doubted the power 
 of the Court of Chancery, but still worth clearing up. 
 Coke might just possibly have denied the name of a 
 court of record to the Court of Chancery in its equit- 
 able jurisdiction on the ground that its procedure was 
 not according to the course of the common law. This 
 would obviously not apply to the functions of the 
 Court in the issue of writs and the like, as qfficina 
 iustitiae, or as holding pleas in its " ordinary " legal 
 jurisdiction.^ He might also have taken the still 
 more technical exception that the Chancery proceed- 
 ings were not entered in Latin on a parchment roll 
 like those of the Common Law Courts.^ Both these 
 reasons would have iavolved an equal refusal to call 
 the Star Chamber, a very exalted Court according 
 to Coke's own statement in the Fourth Institute, a 
 court of record. In point of fact I do not find that 
 Coke said or suggested any such thing with regard 
 either to the Star Chamber or to the Court of 
 Chancery. 
 
 We have lived so long with our unique wealth of 
 documents that we take it as a matter of course and 
 
 1 BI. Comm. iii. 48, 49. 
 
 ' St. German seems to have thought the difference merely technical, 
 Doct. and Stud. 1, c. 17. Lord Langdale doubted, see First Report of the 
 Commission on Public Records, 1912, pt. 2, p. 10. 
 
K JUDICIAL EECOKDS 231 
 
 fail to be duly thankful for it. Let us consider for a 
 moment tlie state of modern Romanists, and what 
 they would give for a tithe of our resources. Many 
 scores of learned volumes have been written about the 
 procedvire of republican and early imperial Roman 
 law. No small amount of what had been written 
 before the nineteenth century was rendered obsolete 
 when the Verona palimpsest of Gaius gave up so 
 much of his buried text as could be painfully revived. 
 But how much greater would our enlightenment be if 
 we could recover a complete record of the proceedings 
 in a single action under the formulary system. It 
 is hardly uncharitable to suppose that about three- 
 quarters of the learned monographs would lose their 
 importance, be it greater or less. Reports of Roman 
 forensic oratory we have, and at great length ; but 
 they are insufficient not only because Roman advo- 
 cates, it seems, allowed themselves great latitude in 
 deliberately talking bad law to an unlearned court, 
 but because their speeches assumed the very things 
 to be known which the modern Romanist does not 
 know and would like to find out. Not that the 
 official record alone, in any system I have heard of, 
 would tell us the whole practice. But a report alone, 
 official or unofficial, will even less enable us to under- 
 stand the whole matter without authentic knowledge 
 of the formal procedure. Our experience with the 
 Year Books has given ample proof that in the case 
 of a report made by private enterprise the record is 
 of the utmost value as a check. I say private enter- 
 prise, for, with all respect for Mr. Pike's ingenious 
 
232 ESSAYS IN THE LAW ^ 
 
 attempt to save the face of Bacon, Coke, and Black- 
 stone, I hold that the legend of the Year Books 
 having had an official or even semi-official character 
 (which I tried to find credible as long as I could) 
 is now finally exploded. The check in question is 
 likewise applied from time to time by the Court 
 itself, as every habitual reader of the current reports 
 knows ; and seldom without profit. Neither is this 
 practice merely modern ; we have at least one case, at 
 present accessible only in Brooke's Abridgement,^ 
 where the judges corrected an erroneous account of 
 the actual decision in an earHer Year Book by com- 
 paring it with the roll. 
 
 Accordingly the fathers of English reporting, 
 Plowden and Coke, writing in the days when there 
 were no published books of practice, were at the 
 pains of setting out at the head of their reports a 
 copy of the record itself or at least the pleadings. 
 Considerable extracts from the pleadings, I need 
 hardly remind this audience, are quite common in 
 modern common-law reports ; and similarly in equity 
 cases, where the exact form of the decree is often 
 material, the minutes of decree were frequently 
 added. It depends on the nature of the case, and 
 the procedure applicable to it, how much or little 
 information about the facts in evidence and the 
 reasons for the decision can be derived from the 
 official documents. 
 
 A learned person lately said of the rolls of our 
 Courts as distinguished from reports that " the 
 
 1 Tit. Executor, pt. 22. 
 
IX JUDICIAL RECORDS 233 
 
 objects of the record are science and jurisprudence." 
 That is exactly what officials and archivists would 
 deny. The business of the record, they would say, 
 is to show what was officially done, and nothing else ; 
 or if it does show anything else, that is a superfluity 
 which were better done away with. We are to learn 
 from the roll what rights were asserted and denied 
 by the parties, what was at issue between them in 
 fact or in law, and what judgement was given. How 
 far any rule of general importance was laid down, to 
 what extent received opinion or current practice is 
 affected, whether the facts were of a familiar kind 
 or novel, these are things we must find other ways 
 of learning. Hence the distinction of which we are 
 aware from our earliest student days between a 
 record and a report. The record is authentic ; a 
 report has not, in this jurisdiction, any authentic 
 or even official character, and can always be con- 
 tradicted by a more accurate report or even by the 
 clear recollection of the Court or counsel, though this 
 does not often happen. Lines of technical distinction 
 are in law, as in other sciences, more clearly and 
 sharply drawn in later than in earlier days ; and 
 so we need not be surprised when we find that in the 
 middle of the thirteenth century the Westminster 
 record may tell us a good deal of what the case was 
 reaUy about, but in the middle of the eighteenth 
 century it will, oftener than not, tell us nothing. 
 The mediaeval fashion may be conveniently seen in 
 Maitland's edition of Bracton's Note Book, and that 
 of our great-grandfathers in the forms printed by 
 
234 ESSAYS IN THE LAW « 
 
 way of appendix in the older and genuine editions of 
 Blackstone's Commentaries : forms whicli ought to 
 be studied, as well as the untouched text of the 
 author himself, by every one who desires to under- 
 stand the history of modern English law. In Chan- 
 cery proceedings, on the other hand, all the facts relied 
 on had to be asserted in the course of pleading, and 
 therefore we have the story, though in a form which 
 became more and more cumbrous and involved as 
 the Court of Chancery developed a fixed procedure, 
 and was reduced to rational order and dimensions 
 only in the middle of the nineteenth century. Neither 
 in common law nor in equitable procedure were the 
 reasons for the ultimate decision apparent on the 
 record itself, though in many cases a competent 
 lawyer with the pleadings before him could form a 
 pretty safe guess as to the point or points on which 
 it turned. This, I think, may safely be said to be 
 characteristic of the English judicial system, though 
 I have no such extensive knowledge of foreign pro- 
 cedure as would justify me in either affirming or 
 denying that our usage is singular. 
 
 It may be supposed that judicial records have lost 
 much of their importance by reason of formalism 
 having been abolished, or at least having greatly 
 declined, in modern procedure. Such a view, I 
 think, would be superficial. It is true that slips in 
 procedure are no longer fatal, and that it is not 
 necessary to disguise questions of principle under 
 apparently technical controversies as to the proper 
 form of action. But it is impossible to conduct the 
 
K JUDICIAL RECOEDS 235 
 
 business of administering justice without rules of 
 some sort ; those rules have to be interpreted ; and 
 the necessity for applying them to unforeseen facts 
 may raise questions that go much deeper than form. 
 A dispute whether a writ can be served out of the 
 jurisdiction, for example, must not be assumed to be 
 merely technical. It may depend on a deterinination 
 of nationality, and require the Court to consider and 
 review principles not only of general but of cosmo- 
 politan interest. On the other hand, the manner in 
 which questions of this kind arise, and the fact that 
 they arise at one time rather than another, must 
 in large measure depend on the structure of legal 
 procedure even in the most modern and rational 
 system. Roads are for the sake of traflGlc and not 
 traffic for the sake of roads, and yet when a road is 
 made the trafl&c has to follow it. So do the conditions 
 of procedure, once established, determine the form of 
 substantive legal problems and the lines on which 
 they can be solved. ■ The framework of procedure 
 supplies the conventions without which no art can 
 be practised ; for in truth all art, from dancing to 
 pleading, is conventional, and innovators who speak 
 brave words about doing away with convention are 
 only setting up some new convention of their own, 
 which may be good or bad as it happens. Thus 
 every new legal form and every material modification 
 of an old one is a possible nucleus of further develop- 
 ment which may very well be more than formal. 
 It is also to be noted that many questions are on the 
 borders of procedure and substantive law, questions 
 
236 ESSAYS IN THE LAW 
 
 of parties for example. Whether any man has done 
 me a wrong, or owes me a debt or an account, and 
 who, is certainly a substantive question, and finding 
 the right man to sue can hardly be called an afiair 
 of procedure. But then questions may arise, in 
 afiairs of a certain complexity, whether other people 
 are not necessary parties, whose business it is to 
 bring them before the Court, and in what form ; and 
 if these are not matters of procedure it is difiicult to 
 say what is. 
 
 There is a great harvest of knowledge yet to be 
 gathered from our judicial records and the documents 
 associated with them, and so far the laboiirers in 
 any one generation have been few. Some difficulties 
 are in the way, but not comparable to those that have 
 been overcome in many other fields of scholarly 
 research. It is simply a matter of having enough 
 competent workers and encouraging them to carry on 
 the work. The method and instruments are suffi- 
 ciently known, and there are masters willing to teach, 
 but they want more learners. Is it not fit to be 
 considered what can be done in this behalf by the 
 young and vigorous Law Faculty of a University 
 established here in London, within easy reach of the 
 centres of legal and mediaeval learning and the 
 Record Office itself ? Perhaps it may not be pre- 
 sumptuous to suggest that the local circumstances 
 afford good reason for some special determination of 
 your University's higher legal studies in this direc- 
 tion. There is the certainty of dissertations being 
 required for the higher degrees, and candidates are 
 
JUDICIAL RECOEDS 237 
 
 often glad to have some guidance in choosing their 
 subjects. There is the possibility, I should hope 
 some probability, of ■ a Seminar such as my friend 
 Prof. Vinogradofi is already conducting at Oxford. 
 Moreover, although for anything I know this may be, 
 for the present, a counsel of perfection, I do not see 
 why candidates for the higher honours of the Faculty 
 should not be expected to show some acquaintance 
 with the language and the materials of our mediaeval 
 law. It is unhappily true that in the Inns of Court 
 it is quite possible, partly for the hardness of men's 
 hearts and partly for accidental reasons not necessary 
 to mention here, to satisfy the requirements of the 
 Bar Examination, which include Roman law, without 
 being able to construe a sentence of Latin. But surely 
 there can be no need to exhort a University audience 
 to regard that state of things as warning rather than 
 example. Many years ago I was examining for the 
 Law Tripos at Cambridge, and overheard some 
 examinees discussing a paper set by myself the same 
 morning. Their judgement was unfavourable. " I 
 thought we should have questions on history," said 
 one of them, " and they set a lot of beastly Latin." 
 It is precisely the vocation of a Law Faculty which 
 takes its work seriously to make it plain to students 
 that without the " beastly Latin " they cannot have 
 any history deserving the name, and without adding 
 mediaeval French to the Latin they cannot have any 
 opinion of their own worthy of being considered by 
 scholars, or even classed by examiners, on any part 
 of the history of English law before the nineteenth 
 
238 ESSAYS IN THE LAW 
 
 century. My ideal Baclielor of Laws should be able 
 to read the usual constitutional and legal texts in. 
 Latin, and to make out plain Year Book French with 
 the aid of Horwood's and Maitland's editions. My 
 ideal Doctor of Laws would not necessarily be able to 
 read an original roll or a Year Book MS. with certainty, 
 but I should like him to know what they look like, 
 and I should certainly want him to be able to check a 
 translation from either in print, short of the reaUy 
 obscure passages where translation has to be more 
 or less conjectural. This involves, no doubt, a fair 
 knowledge, and the more all-round the better, of 
 both mediaeval Latin and mediaeval French : I do 
 not see why that is too much to expect. For a man, 
 at all events, who has already grappled with the 
 niceties of classical Greek and the intricate structure 
 of Latin, the task cannot be deemed formidable ; 
 and it seems likely that for some time to come our 
 scholars in legal history will be mainly recruited from 
 those who have passed through some classical train- 
 ing. Moreover, I think the suggested requirement 
 would be well fitted to discourage amateur antiquaries 
 from trying to pose as jurists ; and I really do think 
 there is less danger to legal science from the frank 
 and shameless ignorance of the illiterate practitioner 
 than from the sciolism and wild guesswork of the 
 half -trained amateur. Great is the wilderness wherein 
 the wild mare maketh her nest, and many there be 
 that find it. What is more, the lay people may take 
 those deluded adventurers for real explorers and 
 discoverers, as like as not ; for most laymen believe 
 
i^ JUDICIAL EECOEDS 239 
 
 all law to be so absurd that no doctrine in or about 
 it can be too absurd to be probable. 
 
 We have, besides our judicial records proper, large 
 classes of ofldcial and administrative documents more 
 or less closely connected with, judicial proceedings, 
 and at times so much mixed up with them that it is 
 hard to say where the judicial character ends and 
 the merely official begins. An obvious example is 
 afiorded by the revenue side of the Exchequer. The 
 reasons for seeking to increase the knowledge of these 
 records, and the profit to be derived therefrom, are 
 much the same as in the case of records actually 
 belonging to courts of judicature, and most of what 
 I have said is equally applicable to the semi-judicial 
 or quasi- judicial archives. 
 
 As to the actual denominations, distribution, and 
 custody of our judicial and official records, it may be 
 useful to some of my hearers to indicate very briefly 
 where the proper information can be found. Every- 
 thing necessary for the student's guidance, except 
 the elements of history, law, and politics on the one 
 hand, and detailed instruction in language and 
 palaeography on the other, is given in Mr. Scargill 
 Bird's Guide to the Public Records and other Kecord 
 Office publications, the article " Eecord," by Mr. 
 Crump of the Eecord Office, in the eleventh edition 
 of the EncyclopcBdia Britannica, Mr. Hubert Hall's 
 Studies in English Official Historical Documents and 
 the accompanying Formula Booh (1908-9), and (by 
 no means least, though it is quite a short tract) Mr. 
 Pike's Oxford lecture on The Public Records and the 
 
240 ESSAYS IN THE LAW ^ 
 
 Constitution (1907). Mr. Pike's article on the Record 
 Office in tlie Encyclopcedia of the Laws of England, 
 and the First Report of the Royal Commission on 
 Public Records (1912), may also be consulted.^ This 
 is very far from exhausting the profitable literature 
 of the subject, but it is enough to begin with. In 
 this lecture I have purposely avoided any fragmentary 
 presentation of facts which have been methodically 
 and fully set out by men acquainted with them at 
 first hand, and which mostly do not admit of profit- 
 able or safe abridgement. 
 
 1 There is now a most useful compact summary, the Repertory of British 
 Archives (Part I., England), edited by Mr. Hubert Hall for the Royal 
 Historical Society, Lond., 1920. 
 
X 
 
 ENGLISH LAW EEPORTINGi 
 
 The English Council of Law Reporting lias before 
 now been represented at meetings of the American 
 Bar Association by some of its most distinguished 
 members. I do not think, however, that they said 
 anything about the Law Reports or the English system 
 of reporting ; and I believe this is the first time that 
 an editor of the Law Reports has the honour of being 
 your guest. Indeed, I am the first editor of the Law 
 Reports as a whole, for until 1895 there were three 
 (originally four) independent editors under the general 
 supervision of the Council. For this reason, and also 
 because anything I say here is bound to be quite 
 difierent from the lectures I am invited to deliver 
 in October to the law schools of certain universities, 
 it may be appropriate to the occasion to tell you 
 something of the business I have been charged with 
 now for eight years and a half. I need hardly premise 
 that we, the staff of the Law Reports, consider our- 
 selves as exercising an ojB&ce of trust on behalf of the 
 legal profession not only in England, but in every 
 jurisdiction where the common law is received or its 
 
 ^ A Paper read before the American Bar Association at Hot Springs, 
 Virginia, August 26, 1903 ; printed in L.Q.B. xix. 451. 
 
 241 R 
 
242 ESSAYS IN THE LAW ^ 
 
 authorities quoted. Still less is there any need to 
 imitate the panegyrical and not wholly felicitous 
 prefaces of Coke or his demonstration that Moses 
 was the first law reporter. Neither shall I dwell on 
 the intimate and necessary connexion of law reporting 
 with the authority of judicial decisions in the common 
 law. That, I conceive, is fully understood by all here. 
 I will not speak, again, of the history and merits of 
 the early reporters, for therein your countryman, 
 John William Wallace,^ is our master ; it was one of 
 our greatest common-law lawyers, the late Mr. Justice 
 Willes, who sent me to " Wallace on the Reporters " 
 more than thirty years ago. Nor yet will I set forth 
 the virtues of a good reporter so far as they are 
 common ground to us all. You know them well 
 enough ; probably there are many here who have 
 practised them ; certainly there are more who have 
 stimulated them by the frank exhibition of critical 
 interest. We are here as men of business ; let us come 
 to business and consider those points about law report- 
 ing in England which may be less familiar here than the 
 general historical or doctrinal aspects of the subject. 
 First, our law reporting is unofficial, as it has been 
 ever since the commencement of modern reports. 
 It is more than doubtful whether the year books were 
 the work of official reporters. Internal evidence is 
 distinctly unfavourable to the tradition, for it looks 
 like a professional tradition, which Bacon and Plowden 
 
 • Reporter of the Supreme Court of the United States, 1863-1875. His 
 classical work on the early reporters is unfortunately scarce, even in the 
 comparatively recent edition by F. F. Heard, and is, I believe, not so 
 familiar as it deserves to be. 
 
ENGLISH LAW REPOETING 243 
 
 accepted. Bacon would be a better witness if he had 
 not used the story to support a scheme of his own for 
 official reporting ; and Coke's enormous credulity 
 makes his repetition of it worthless.^ In any case 
 the later reports which we call authorised were 
 produced by private enterprise and enjoyed only a 
 personal authority given by the judges of the several 
 courts to the several reporters, which, down to the 
 institution of the Law Reports, and in some cases 
 a few years longer, procured them certain exclusive 
 advantages. In the eighteenth century judges now 
 and then took on themselves to discredit particular 
 books of reports ; James Alan Park, J. (not to be 
 confounded with Parke, afterwards Lord Wensley- 
 dale), said in 1830, " Lord Kenyon reprimanded me 
 when I was at the bar for citing Keble." ^ This is 
 perhaps later than any of Wallace's examples. But, 
 according to modern custom, any report vouched for 
 at the time by a member of the bar may be used in 
 court for what it is worth, although the citation of 
 an unpublished report is not at all common nowadays. 
 The multitude of independent reports for several 
 courts, and competing authorised and unauthorised 
 reports in the same court, gave rise to inconveniences 
 which have often been described, and in 1865, as the 
 result of much professional discussion, meetings of the 
 bar and other matters of inducement, all which are 
 fully set forth in Daniel's History of the Law Reports, 
 
 1 I now think that Mr. Maitland'a oritioal investigation of the year books 
 of Edward II., forthcoming in » Selden Society Tolume, finally makes the 
 legend untenable. [H's Introduction, now classical, was published in 1903.] 
 
 2 Adams v. Gibney, 6 Bing. at p. 664, 31 R.R. at p. 521. 
 
244 ESSAYS IN THE LAW ^ 
 
 tke Council of Law Keporting and their reports came 
 into existence. That body is not a Government or 
 official institution. It has no legal privileges and 
 does not claim any monopoly ; the freedom of citation 
 which I have just mentioned remains unimpaired. 
 In fact it is a joint committee of the Inns of Court, 
 the Law Society ^ (representing solicitors, who, with 
 us, as you know, are a distinct branch of the profes- 
 sion), and, of late years, the Bar Council. One can 
 easily imagine how difierently this would have been 
 ordered in any other European country, supposing 
 our system of the eminent and exclusive authority 
 of judicial precedents to have obtained there. If 
 England were a German kingdom, I should un- 
 doubtedly be an official person, probably rather a 
 considerable person, with some such title as Koniglich- 
 ObergericMs - Archivs - DireJctor, and a Geheimrat or 
 Justizrat to boot. As it is, I am nothing of the Idnd. 
 My learned colleagues on the staff of the Law Reports 
 and myself are not an official hierarchy. We are 
 not members of the civil service. We have no iasignia, 
 no precedence, no title to be invited to state functions. 
 The lay public is hardly aware, if aware at all, of our 
 existence. We are even among the few things in the 
 British Empire unknown to Whitaker's Almanack, that 
 compendious and almost imiversal book of reference. 
 If these be drawbacks, and I doubt whether most 
 of us would count them such, we have our com- 
 pensations. Disciplined co-operation is, of course, 
 a necessity ; though some learned persons, when the 
 
 ' The addition of " incorporated " is now dropped. 
 
X ENGLISH LAW EEPORTING 245 
 
 establishment of the Law Reports was under discus- 
 sion, did not see of what use an editor would be. 
 But our bond is more like that of a college crew than 
 that of a Government oflB.ce. What rules we have, 
 outside matters like the dates for returning proofs, 
 really belonging to the printing and publishing more 
 than the reporting department, are mostly unwritten. 
 I admit that I set some value on two rules I have made 
 for myself, to give my colleagues as free a hand as 
 possible and never to write a formal letter when I 
 can help it. My successor will not find much in the 
 way of demi-official archives. We confer freely and 
 confidentially, as occasion requires, with the judges, 
 with the counsel engaged in cases to be reported and 
 with one another. Any suggestion from the judges is, 
 I need hardly say, most respectfully considered, and 
 observations from the profession at large, whether 
 constructive or critical, are welcome. I have known 
 five minutes' talk with a learned friend, of which 
 there was no written record whatever, lead to a modest 
 but useful typographical improvement. But all this 
 is quite imofl&cial. We are answerable to the council 
 who appoint us,^ and to the council alone ; and in 
 the most improbable case of an attempt at formal 
 interference from any other quarter, I should have no 
 hesitation in telling the intermeddler, however exalted 
 his professional or ofl&cial position might be, to mind 
 his own business, and I should do so with the full 
 
 1 There is one exception to be noted here. The appointment of reporters 
 in the House of Lords is made by the House itself, practically by the Lord Chan - 
 cellor [now on the nomination of the CouncU of Law Reporting]. The editor 
 has nothing whatever to do with the appointment of reporters in any branch. 
 
246 ESSAYS IN THE LAW 
 
 assurance of being supported by the council. In 
 short, we imitate on our small scale that method of 
 proceeding by customary and imwritten understand- 
 ings and settling the really important matters, so to 
 speak, out of court, which is the pride of Anglo-Saxon 
 political institutions and the despair of almost all 
 foreign students. There is a growing tendency among 
 our people to multiply rules and administrative 
 machinery and demand what is called organisation. 
 No one who has had much to do with the English 
 universities any time the last twenty years can have 
 failed to observe it. Broadly speaking, I think it 
 is a mischievous tendency and ought to be resisted. 
 Some rules are certainly necessary for every society 
 not of a domestic and intimate kind, and combined 
 work must certainly be organised if it is to be efiective. 
 But this does not mean that it is reasonable to hamper 
 business with an excess of minute regulations or to 
 paralyse discretion, fritter away responsibility and, 
 worst of all, waste the energy of men fit for better 
 things by imposing a complicated routine on even the 
 simplest affairs. As a matter of fact, the precautions 
 that such routine is supposed to embody are very 
 seldom, if ever, of any honest use. If it is intended 
 to make certain things really difficult, such as changes 
 in the nature of constitutional amendments, there 
 are plenty of known and tried ways of doing this 
 openly. Making everything, great and small, diffi- 
 cult just to the point of cumbrousness and vexation, 
 but not difficult enough to secure a considered and 
 solemn decision of the greater matters, is the worst 
 
ENGLISH LAW REPORTING 247 
 
 way of all, ttougli unliappily not ■uncommon. But I 
 am digressing. 
 
 Having thus endeavoured to stow you the spirit 
 of the Law Reports and to prevent misunderstanding 
 of the form, I will speak of our actual constitution 
 and operations. Reference to the Weekly Notes, 
 digests and other auxiliary and occasional publications 
 of the council, is omitted as not likely to be of much 
 interest here. We have to provide reports of cases 
 decided by the following tribunals : 
 
 The House of Lords (including appeals from 
 Scotland). 
 
 The Judicial Committee of the Privy Council. 
 The Chancery Division of the High Court of Justice. 
 The King's Bench and Probate Divisions of the 
 same court. 
 
 The decisions of the Court of Appeal are attended 
 to (with a minute exception in bankruptcy cases) 
 by reporters attached to the division from which they 
 come. You may see the number and names of the 
 reporters, and their usual distribution among the 
 courts, printed on the covers of the current numbers 
 of the Law Reports, and it would be idle to repeat 
 those particulars. What does not appear on the face 
 of the cover ^ is that the Chancery reporters communi- 
 cate direct with the editor, the House of Lords and 
 King's Bench reporters with my learned friend Mr. 
 Stone, the assistant editor, and the Privy Council 
 
 1 [The arrangement here described has been much simplified. In 1915 
 Mr. A. P. Stone retired, and his post was not filled ; all the reporters now 
 ( 1922) ooramunicate direct with the editor. Also the reporting in the House 
 of Lords is all in one hand.] 
 
248 ESSAYS IN THE LAW 
 
 reporter with the editor, enjojang, however, this 
 peculiar franchise (a relic of former absolute 
 autonomy) that his MS. does not pass through the 
 editor's hands. The reasons for these diversities are 
 partly too local, personal and otherwise accidental 
 to be worth stating, and partly unknown to myself. 
 I do not know, for instance, why there is only one 
 reporter for all the colonial and Indian appeals before 
 the Judicial Committee and a separate reporter for 
 Scottish and divorce appeals in the House of Lords ; 
 still less do I understand the reason of this last 
 conjunction, but so I found it. Probably our want 
 of logic would shock a learned Frenchman somewhat, 
 and our laxity might shock a learned or military 
 German more. Being an illogical folk, we do well 
 enough on the whole with all our anomalies. All the 
 proofs, however, are seen by the editor, including those 
 of the Indian appeals, a distinct series of which there 
 are probably not many copies on this side of the 
 Atlantic. As to these last I have a particular little 
 grievance, not remediable except by the Indian 
 courts themselves. The High Courts of the Indian 
 Presidencies are independent. Each of them has its 
 own fashion, mostly barbarous and antiquated, of 
 transcribing Indian proper names and words of art. 
 Perhaps the extreme case is that of a beautiful 
 Sanskrit compound which becomes " Chuckerbutty " 
 in the Anglo-Bengalese dialect, suggesting some gro- 
 tesque personage in Dickens. The practical result is 
 that the same name may be written in three or four 
 different ways in the documents which come before 
 
ENGLISH LAW REPOETING 249 
 
 the Judicial Committee and has to be indexed accord- 
 ingly as if it were as many different names ; and also, 
 though this is of less importance, that many common 
 terms of tenure and agriculture are so written, oftener 
 than not, that a merely English reader is almost sure 
 to mispronounce them. If the Indian courts would 
 agree to adopt any one tolerable and consistent plan 
 of transliteration, the Indian appeals would cease to 
 present a ridiculous appearance to every one even 
 slightly acquainted with any of the classical or 
 vernacular languages of India ; but I know of no 
 reason to expect any amendment. 
 
 As to the matter of the reports, there is no fixed 
 rule for deciding what cases are to be published. 
 Utility to the profession is the only test. We do not 
 necessarily report a judgement because it is written, 
 stiU less omit to report it because it is delivered ofi- 
 hand. The judges themselves are under no rule as 
 to reserving or writing their judgements, and any hard 
 and fast distinction founded on judgements being 
 written or oral, considered or not considered, would 
 lead to absurd results. The late Sir G. Jessel, one of 
 the strongest judges we ever had, very seldom wrote 
 his judgements. In the Court of Appeal written 
 judgements are naturally more frequent than else- 
 where, but there need not even be uniformity in the 
 same case. For the most part separate opinions are 
 delivered, and one member of the court may write his 
 judgement while the others do not write theirs. I may 
 mention that even when judgements are wholly written 
 they are still actually read out in court : I do not know 
 
250 ESSAYS IN THE LAW 
 
 to whom this is of any use ; certaialy not to the 
 reporters. In this respect our practice is somewhat 
 peculiar. In some jurisdictions the appellate courts 
 are boimd to put their judgements in writing ; in many, 
 I believe, it is the practice to report all written judge- 
 ments. With us a much greater burden of discretion 
 is thrown on the reporter. An elaborately argued 
 case involving large pecuniary iaterests, and requiring 
 a very careful judgement, may be of no general pro- 
 fessional interest whatever, and turn wholly on special 
 facts. Of this kind are many patent and trade-mark 
 cases. On the other hand a very brief and off-hand 
 judgement may settle a vexed point of practice or even 
 of law. A wide field seems to be open ; but on the 
 whole the trained perception of the reporters, assisted 
 by the keen but quite friendly competition of other 
 publications, is very seldom at fault. I venture to 
 say that, with few and accidental exceptions, that 
 which neither the Law Reports nor the Law Journal 
 (our chief competitor) report is not worth reporting. 
 Occasionally there may be reasons of an extra-judicial 
 kind for reporting a case, not so easily known to the 
 reporter as to the editor. Once I caused a decision of 
 the Court of Appeal to be reported, though it did not 
 add anything to what we already knew at home for 
 settled law, because I happened to know that the case 
 and the points involved in it had excited a good deal 
 of interest in the West Indies ; and once or twice I 
 have thought that a case was not to be discarded 
 merely because it had become notorious among the 
 lay public on professionally irrelevant grounds. The 
 
^ ENGLISH LAW REPOETING 251 
 
 responsibility of suppressing a case sent in by tbe 
 proper reporter is evidently much, greater, and I 
 cannot remember ever having done such a thing 
 against the reporter's persistent judgement. Here the 
 reason is plain. In case of doubt, it is safer to report 
 a decision than to leave it aside ; and the fact that a 
 skilled person specially charged to form an opinion 
 does think a particular decision reportable is of itself 
 good evidence in its favour. Holding back a case 
 which is to be the subject of an appeal is quite a 
 different matter, and depends on a variety of considera- 
 tions, as does the further question whether, in a con- 
 solidated report, the judgement below shall be set out 
 or only its purport stated. On such points of discretion, 
 which may be rather nice, an experienced reporter's 
 opinion is always valuable and often conclusive. 
 
 The reporting of arguments and of oral judgements 
 is doubtless the most skilled and difficult part of an 
 English reporter's task. Arguments have to be ex- 
 hibited fully enough to explain the points made, the 
 line of reasoning, and the authorities relied on, but not 
 at superfluous length. You must remember that 
 printed " briefs " or expositions of counsel's argu- 
 ments are not in use in England. It is true that the 
 procedure of the House of Lords and the Judicial 
 Committee requires printed cases to be lodged. But 
 these documents are anything but a certain guide to 
 the points which will be really insisted on ; they are in 
 a narrative form, concluding with a short statement 
 of reasons, but giving no clue to the authorities. 
 Nothing but careful attention to the argument as it 
 
252 ESSAYS IN THE LAW ^ 
 
 actually takes place, not forgetting judicial iater- 
 locutory remarks, will produce an adequate report. 
 In dealing with oral judgements tlie reporter's aim is to 
 give the spoken word a becoming written form without 
 substantial change of sense. More or less editing may 
 be wanted ; some judges are more careful or more 
 concise ia their language than others. But the cases 
 are rare indeed in which a mere verbatim note of 
 anything said extempore, however good it may have 
 been to hear, can be accepted as readable EngHsh. 
 Our labour is lightened by the favour of the judges, 
 most of whom (in the Chancery Division all) revise 
 their judgements in proof ; but I do not think that 
 would justify us in giving them a crude shorthand note 
 to work upon. Further, some things are useful for the 
 judge to say ia court which are superfluous for the 
 reader of the report, having the facts and arguments in 
 print before him ; so that here there is a good deal 
 of Hterary as well as legal discretion to be exercised, 
 and moreover it is the editor's duty, without pre- 
 judice to any genuine individuality, to secure a certain 
 uniformity and maintain a due standard of language. 
 On the split infinitive, for example, I do my best to 
 wage a war of extermination. Another pest of law 
 reports, derived I think from ill-penned statutes and 
 conveyancing forms, is the slovenly misuse of " such " 
 as a mere demonstrative. As for example : " The 
 plaintiff's yellow dog, being, as was alleged by the 
 plaintiff, muzzled, bit a dynamite cartridge belonging 
 to the defendant. Such cartridge exploded, and after 
 such explosion it was not found possible to reconstruct 
 
ENGLISH LAW EEPOETING 253 
 
 either such, dog or such muzzle." This likewise I 
 endeavour to extirpate. But some weeds are very 
 hard to grub up finally.^ 
 
 Addition of special notes by the reporter or the 
 editor, or both, is a matter of occasional convenience 
 for which there can be no dogmatic precept. No one 
 would think nowadays of imitating the disquisitions 
 appended to their text by the very learned Serjeant 
 Manning and some of his predecessors, though one or 
 two of them have become classical. But little pieces 
 of information, not strictly part of the report, are at 
 times apposite and useful. Several times I have 
 found it desirable, if not absolutely necessary, to 
 correct the singularly bad translations furnished for 
 the use of the court by persons, I know not whom, 
 generally incapable of writing intelligible English and 
 
 ^ It is not relevant to the issue before us — but the temptation is irresist- 
 ible — to consider what pleadings might arise on the facts I have suggested, 
 in a jurisdiction such as New Jersey or Vermont, where the pure word of 
 the common law stUl prevails. There might be a plea to the effect that 
 the plaintiff's dog was unlawfully at large without a muzzle, contrary to 
 the ordinance in that behalf, and that he, therefore, bit any goods of the 
 defendant wholly at his own peril ; to which plea there would be a 
 demurrer, on the ground that it amounted to an argumentative general 
 issue. There might also be a special plea in confession and avoidance, 
 alleging that the plaintiff's dog was unlawfully at large with intent to 
 steal, take and carry away goods and chattels of the defendant and of 
 divers,' to wit, two hundred other lawful citizens of the United States whose 
 names and residences are to the defendant unknown ; that the dog, at- 
 tempting to execute such unlawful intention, did with his mouth seize, 
 bite and apprehend a certain dynamite cartridge of the goods and chattels 
 of the defendant, which cartridge, thereupon, in self-defence, and being 
 unable otherwise to prevent the commission of a felony, did, a little and 
 moderately, and without unnecessary force, detonate, burst and explode, 
 and then and there did, a little and moderately, the said dog of the plaintiff 
 disperse, scatter and destroy, as for the causes aforesaid it lawfully might, 
 which is the trespass complained of ; without this, that the defendant did 
 kill and destroy the plaintiff's dog in manner and form alleged. To this 
 plea there would be a replication de, injuria and probably a demurrer 
 thereto. I leave it to this court to say what the proper judgement would be. 
 
254 ESSAYS IN THE LAW 
 
 often capable of misunderstanding the original. One 
 would think that a person rendering a French or 
 German legal document into English ought to have 
 some rudimentary knowledge of the words of art of 
 both systems, but this appears to be considered quite 
 unnecessary. There was a case, not many years ago, 
 where a translator's mistake in French — an elementary 
 mistake too, and not depending on anything technical 
 — might have really embarrassed the court if Mr. Justice 
 Wills, being an excellent French scholar, had not 
 promptly corrected it. A particular kind of note 
 forming a category by itself is the incidental report of 
 a decision which was relied on in the principal case, 
 and of which the published report or reports are im- 
 perfect or inaccurate. Search by counsel or judges 
 in the records of the court sometimes throws quite a 
 new light on old and scantily reported cases. We 
 have had a very recent example.^ 
 
 It may be of some little interest to state the regular 
 course of dealing with a reported case from delivery 
 of the MS. to publication. I take the Chancery 
 Division as being that in which the material is under 
 my own eye at every stage. In the last days of one 
 month and the first of the next the MSS. on hand are 
 sent on to the printers after a summary inspection. 
 The reports on which any question arises at this stage 
 are very few, and it often happens that a reporter's 
 copy is in my custody only for some hours. In favour- 
 able circumstances a short case decided near the 
 
 • See the corrected report of Palmer v. Young, 1 Veru. 276, in the note 
 at the end of Re Biss [1903] 2 Ch. at p. 65. 
 
X ENGLISH LAW REPOKTING 255 
 
 beginning of a month, may be reported witMn a week, 
 sent to press witli the current batcli, and published in 
 th.e very next number. It is not so very long since 
 our present speed would have been thought impossible 
 or hardly decent ; but I have not observed that 
 promptitude leads to any falling off in accuracy. 
 Indeed I think the work is likely to be better, if any- 
 thing, for being put through while the memory of 
 all persons concerned is fresh. About two months, 
 however, is the more usual lapse of time between the 
 date of a decision and that of its appearance in the Law 
 Reports. A longer interval, when it occurs, may be 
 due to the preparation of the report having been 
 unusually laborious, or to unavoidable delay in obtain- 
 ing the necessary papers from counsel and solicitors, or 
 in the return of proofs by the judges, or to time having 
 been taken to consider whether the case should be 
 reported, or to pressure of matter at certain times of 
 the judicial year compelling the postponement of some- 
 thing. The numbers published immediately before and 
 in the long vacation (August, September, October) 
 may be treated, for practical purposes, as one number 
 divided into three for technical rather than profes- 
 sional reasons. 
 
 To return to the normal history of a Chancery 
 Division case, the first proof comes from the press in 
 the second week of the month. A duplicate is fur- 
 nished to the judge, or one to each judge if it is a Court 
 of Appeal case. The corrections of the reporter and 
 the judge are worked in ; and here I must repeat that 
 the obligation of the reporters and the profession to 
 
256 ESSAYS IN THE LAW ^ 
 
 the learned judges for tte time and care they bestow, 
 purely as a matter of grace, on the revision of their re- 
 ported judgements, and not infrequently on valuable 
 hints for the improvement of other parts of the report, 
 is far greater than any one could guess who does not 
 see the work done. Then, for greater certainty, all 
 references and quotations are verified by a sub-editor 
 specially employed for the purpose. About the middle 
 of the month the slips go back to the press, and the 
 final proof in pages comes to the editor in time to be 
 passed with about a week to spare, from the return of 
 the latest sheets, for the mechanics of striking ofE and 
 stitching. As a rule there ought to be, and is, next to 
 nothing to correct in the final proof, but sometimes an 
 elucidation of fact, name or reference turns up at the 
 last moment, or a manifest error is discovered which 
 has contrived so far to escape several pairs of trained 
 eyes. I may observe, as the result of a pretty long 
 experience of press corrections, that the more manifest 
 an error is the greater chance it has of continuing to 
 escape when it has escaped once. The reason is that 
 even a skilled proof-reader may unconsciously read 
 with his mind's eye what ought to be there instead of 
 what is ; and if he does it once, he is as likely as not 
 to do it again. A familiar and annoying example is 
 the accidental transposition of the words " plaintiff " 
 and " defendant," a blunder which I conceive every 
 one of us must have unconsciously committed in his 
 own work at some time or other, and as unconsciously 
 failed to correct. 
 
 We do our best to provide a series of checks. First 
 
ENGLISH LAW EEPOETING 257 
 
 there is the reporter's eye ; then the judge's ; then the 
 editor's and his clerk's (and my clerk has read proofs 
 for and with me for twenty years) ; then the sub- 
 editor's ; and finally the reader's in the printing 
 office. Yet with all this we cannot wholly avoid 
 errata. Speaking to those who know how special and 
 complex is the typography of the footnotes in a law 
 report, which may at any time include unfamiliar 
 abbreviations and outlandish words and names, I make 
 no apologies. But I believe that the number of mis- 
 prints at all likely to mislead any reader to whom the 
 references are significant is in truth exceedingly small. 
 And so the reports go forth on the first day of the 
 month ; I will not say "on or about," for we allow 
 ourselves no days of grace unless the fijst of the month 
 is a dies non, and any other kind of accidental delay is 
 a matter for searchings of heart. Strict punctuality 
 is what we aim at and usually attain.^ Our work is 
 quite unknown to the general public ; it is perhaps 
 rather obscure even to a large number of the profes- 
 sion ; a great deal of what we publish is, by the nature 
 of current litigation and legislation, merely local and 
 transitory. What is to you here, for example, the 
 statutory definition of a " new street " "? Neverthe- 
 less you know and we know that we are about a work 
 the English-speaking world cannot do without. In our 
 modest and ministerial field of operation we are helping 
 to maintain a national and more than national heritage, 
 the ancient and still vital growth of the common law. 
 
 1 [It is now ( 1922) pretty well restored after some inevitable shortcoming 
 under war conditions.] 
 
 s 
 
XI 
 
 LAY FALLACIES IN THE LAW^ 
 
 My purpose is to speak of certain false opinions whicli 
 are suggested, if not asserted, by the language of 
 more than one old-fashioned textbook ; I mean such 
 as were still in vogue less than half a century ago. 
 When I call them lay fallacies I do not mean that 
 they have not deceived, or may not deceive, unwary 
 members of the profession, but that they are signs of 
 failure to give due attention to the peculiar nature 
 of legal science and the proper attributes of legal 
 justice, and are such as easily occur to the first 
 thoughts of a reasonable but uninstructed layman, 
 even if he has not been dabbling in the works of 
 learned persons whose conventional rhetoric, easily 
 discounted by professional readers, he has innocently 
 taken at the face value. Mistakes of this kind are 
 not altogether trivial or harmless. Lawyers know 
 pretty well in a general way what courts of justice 
 are capable of performing and what not ; but the 
 citizen who confidently aspires to make the world 
 better in his own sense, not being restrained by 
 practical sense born of experience, will often require 
 
 * From Legal Essays in honour of John H. Wigmore, Chicago, 1919. 
 
 258 
 
LAY FALLACIES IN THE LAW 259 
 
 the law to perform impossibilities ; and when Ms 
 expectation is disappointed, as it has to be, he will 
 denounce judges and lawyers as if they were in a 
 wilful conspiracy to pervert natural justice. • Ancient 
 wisdom has defined justice as the constant will to 
 give every man his due. Whatever may be the 
 shortcomings of this definition, its framers were 
 discreet in not adding any warranty of complete 
 power. Successors who have expanded their words 
 have not always been careful enough to follow their 
 discretion. • 
 
 The most fruitful of these fallacies, if indeed it be 
 not the common root of them all, is the assumption 
 that the law of the land purports to be a general guide 
 for the conduct of life. Viewed in that fashion, it 
 must be admitted that the commandments of the 
 law come sadly short of being adequate. We lawyers 
 know very well, and may find high judicial authority 
 for it if required, that life would be intolerable 
 if every man insisted on his legal rights to the 
 full. • It does not take much reflexion to perceive 
 that human action cannot be reduced to complete 
 mechanical uniformity, and the most rigid custom, 
 the most minutely framed enactment, must leave a 
 certain margin of discretion ; also that, when once 
 discretion is admitted, it may be exercised for better 
 or for worse. But as the greater part of mankind 
 do not reflect adequately, and many not at all, 
 it is easy to take the hyperbolic language of orators 
 
260 ESSAYS IN THE LAW 
 
 and text-writers literally and suppose legal justice 
 competent, and therefore bound, to cover the whole 
 field of conduct. 
 
 Misquoted or misunderstood utterances of famous 
 authors have had much to do with the prevalence 
 of false notions in law as in other sciences. Two 
 or three words of Cicero's current in our books are 
 probably answerable for a great crop of confused 
 thought. He spoke of law, or rather of legislation, 
 as prescribing what is of good report — " iubens 
 honesta " ; so it is commonly quoted, but the text ^ 
 reads imperans (the similar phrase " iubet ea quae 
 facienda sunt " does occur in another passage). ^ 
 
 Now Cicero was never esteemed an authority in 
 the Common Law, but that is no reason why we 
 should leave him under suspicion of having written 
 nonsense, or something dangerously like it. • Many 
 readers of Cicero and other Latin authors (or retailers 
 of fragments from them) forget that words often have 
 much more definite implications .in classical Latin 
 than their nearest English equivalents will carry. 
 The conception at the root of the word lex in all its 
 uses is that of willed design, whether the designer 
 be a God, or a legislator, or the framer of an express 
 condition in a private transaction, as in the very 
 common phrase " ea lege." It is hardly too much to 
 say that the primary content of the word is the 
 reason or intention of him who prescribes a rule 
 rather than the matter prescribed. • Therefore Cicero's 
 dictum, even when torn from the context, does not 
 
 1 Phil. XI. xii. a De legg. I. vi. 18. 
 
LAY FALLACIES IN THE LAW 261 
 
 mean that legal ordinances, as formulated, purport to 
 cover the field of morals. Its point is something 
 very difierent and much more reasonable, namely 
 that, so far as legal precepts positively command 
 anything to be done, their ultimate justification is 
 the authors' conviction that what they command is 
 politically and morally right. But let us take a 
 step farther and look at the context {Phil. XL xii. 
 28). What is Cicero talking about ? Is he engaged 
 in defining terms of art in jurisprudence ? Is he 
 dealing with ordinary legal categories ? Is he think- 
 ing as a lawyer at all ? Quite the contrary. He is 
 arguing in the senate as a statesman and defending 
 a formal irregularity by an appeal to the higher law 
 of moral necessity. A commanding officer and 
 provincial governor has acted outside the limits of 
 his command on emergency. What is to be said for 
 him ? Here are Cicero's words : 
 
 Qua lege ? quo iure ? Eo, quod luppiter ipse sanxit, ut 
 omnia quae rei publicae salutaria essent legitima et iusta habe- 
 rentur. Est enim lex nihil aliud nisi recta et a numine deorum 
 tracta ratio, imperans honesta, prohibens contraria. Huic 
 igitur legi paruit Cassius quum est in Syriam profectus, 
 alienam provinciam si homines legibus scriptis uterentur, his 
 vero oppressis suam lege naturae. 
 
 Cassius committed an excess of jurisdiction ; 
 according to the usual rules of his service, if they 
 are to be applied to the case, it certainly was so. 
 But the situation called for prompt action to redress 
 the violent wrongdoing of a public enemy, and he 
 followed the higher law of righteousness and the 
 
262 ESSAYS IN THE LAW 
 
 common weal. In so doing, Cicero goes on to say, 
 he was only anticipating the certain judgement of the 
 senate, as both he and Brutus had done in like cases 
 before. Compare the sentence a little earlier, xi. 
 27 : " Nee enim nunc primum aut Brutus aut Cassius 
 salutem libertatemque patriae legem sanctissimam 
 et morem optimum iudicavit. ' ' Nothing could be more 
 widely removed from the sphere of common official 
 or judicial usage, not to speak of technical definition. 
 We may note by the way that there is nothing 
 specially mediaeval, or "monkish," as our great- 
 grandfathers used to say, in the scholastic doctrine 
 which reckoned the law of nature as a branch of 
 divine law. It is in exact accordance with the original 
 classical significance of natural law as declared by 
 Cicero. The soundness of Cicero's opinion, as applying 
 to the special circumstances, does not concern us here ; 
 but it appears that the senate agreed with him. 
 
 The parallel passage already mentioned is in the 
 De legihus} It is expressly concerned not with 
 the specific contents of any system, but with the law 
 of nature as the ultimate groundwork of all legal 
 institutions : " Penitus ex intima philosophia hau- 
 riendam iuris disciphnam putas," as Atticus is made 
 to state Cicero's object. Cicero professes to follow 
 the best authorities, meaning undoubtedly not Roman 
 lawyers, but Greek philosophers. 
 
 Igitiir doctissimis viris proficisci placuit a lege : baud scio an 
 recte, si modo, ut iidem definiunt, lex est ratio summa insita in 
 natuia quae iubet ea quae facienda sunt prohibetque contraria. 
 
 ' I. vi. 18. 
 
XI LAY FALLACIES IN THE LAW 263 
 
 It is plain from the whole context that Cicero 
 regarded the working out of these universal principles 
 in any particular body of laws as belonging to a quite 
 different order of discussion ; and the fact that he 
 was neither an original philosopher nor a profound 
 lawjer does not make him less competent as an 
 expounder of the views accepted by the leading 
 members of both faculties. To represent him as 
 capable of the sort of confusion between the ultimate 
 standards of jurisprudence and the actual contents of 
 legal systems which is too common in modern books 
 would be to talk mere nonsense. The passage in 
 De legibus is earlier than that in the Philippic, but, 
 as it occurs in a literary and theoretical work, is 
 probably more considered. In any case there is no 
 substantial difference. We have seen that the current 
 quotation does not accurately represent either. But 
 we must not be tempted farther towards putting 
 a juristic sickle into the harvest of Ciceronian 
 scholarship. 
 
 II 
 
 Horace has been even more scurvily treated than 
 Cicero. In his Epistles ^ he gives about fifty lines to 
 warning a friend how foolish it is to be moved by 
 the praise or blame of the ignorant, and especially 
 to court their praise. The passage being too long to 
 quote in full, I must give in short so much of the sense 
 as needful. Whom do we deem a righteous man ? 
 Horace asks. An answer follows, not Horace's own, 
 
 1 I. xvi. 
 
264 ESSAYS IN THE LAW ^r 
 
 but that of an ordinary, rather careless person ; 
 Munro judiciously printed it within quotation marks. 
 " Why, such an one as observes the laws, arbitrates 
 in heavy cases, is good for security and witness." 
 Indeed ! rephes Horace, a man may be all this while 
 his family and neighbours know him for a rogue 
 that keeps on the windy side of the law, no better 
 than a slave who eschews theft and murder for fear 
 of the whip and the gallows ; a fellow whose real 
 prayer is whispered to his dear Laverna, patroness of 
 crooks, while his audible voice is worshipping Janus 
 or Apollo. Such is Horace's own mind. The moral 
 is plain enough and to spare ; Horace points it else- 
 where when he says that enactments without good 
 customs avail nothing to curb the reckless pursuit 
 of gain : 
 
 Quid leges sine moribus 
 vanae proficiunt . . . ? ^ 
 
 It seems hardly credible that the words 
 
 . . vir bonus est quis ? 
 
 qui consulta patrum, qui leges iuraque servat, 
 
 should have been cut out of their satirical context 
 to pass as a platitude which moreover is a false one 
 by Horace's careful showing. Yet it has happened. 
 The fragment may be seen figuring in this lamentable 
 plight on the title-pages of eighteenth-century law 
 books, two or three of them if I mistake not ; and 
 any layman who notes the blunder may think, if he 
 is a scholar, that such is lawyers' scholarship, and, 
 
 1 G. iii. 24. 
 
^1 LAY FALLACIES IN THE LAW 265 
 
 whether he is a scholar or not, that our profession 
 recognises no morahty beyond legality. To assert 
 this as the general habit of lawyers or anything like 
 it would be defamation, but I fear excusable, or at 
 least giving little hope of substantial damages, by 
 reason of the literary stupidity which invited mis- 
 understanding. 
 
 It must be confessed, unfortunately, that a 
 particular kiad of uncritical slovenliness in matters 
 outside professional skill and practice is so frequent 
 among inferior lawyers as to be the common badge 
 of their quality. Not that even successful ones who 
 rose to high places have always been exempt from it. 
 Lord Campbell's lively but wholly untrustworthy 
 biographies are a notorious example. " The lawyer 
 brings to historical research a sense of evidence and 
 a power of testing it " ; so said the Master of Balliol 
 ten years ago, when he was just Mr. A. L. Smith, 
 a well-known Oxford tutor. Of Maitland, his im- 
 mediate subject, this and much more was true, but 
 as a general compliment to the profession it is, with 
 all respect for the Master of Balliol, a hoary fallacy. 
 Some of the worst nonsense I have met with about 
 historical evidence was written by respectable lawyers 
 from Coke downwards. 
 
 More than this, it is not enough to say that a 
 body of law is not a complete system of precepts for 
 the conduct of life. So far as its field coincides with 
 that of ethics, its contents must be conformable to 
 the received precepts of social morality, but it is 
 not itself a system of precepts at all. Its business 
 
266 ESSAYS IN THE LAW 
 
 is not to give lessons in conduct, but to keep tte 
 peace and settle or prevent disputes ; and not the 
 less so because the amount of ethical rule embodied 
 in positive law has increased largely in modern 
 times and is still increasing.^ The moral sense of 
 the community, including therein, of course, that of 
 lawyers, but not as anything difierent from that of 
 other reasonable citizens, tells us what reasonable 
 men expect of each other in the business of Hfe. 
 Courts and legislatures tell us how much of those 
 expectations will be reinforced by public authority. 
 They also prescribe the various ways and forms in 
 which this shall be done ; and that part of their 
 task, as lawyers know, presents infinite difficulties 
 and complexity, together with most dangerous possi- 
 bilities of doing more harm than good with the best 
 intentions ; but of such things very few laymen have 
 anything like an adequate conception. 
 
 Ill 
 
 Another thing overlooked by most laymen is the 
 vast bulk of modern law dealing with matters of 
 public order for which a rule of some kind is wanted, 
 but, until the rule is made by competent authority, 
 it is indifierent from an ethical point of view what it 
 shall be. There is no cause for surprise if difierent 
 or opposite rules are laid down for such matters 
 in difierent jurisdictions, though in some cases it 
 might be convenient to procure general uniformity by 
 
 * See Ames' essay on " Law and Morals " in Lectures on Legal History. 
 
LAY FALLACIES IN THE LAW 267 
 
 international agreement. In private law, too, there 
 are many points of detail evidently calling for a 
 settled rule, but such that no one solution can easily 
 be said to be in itself more just or convenient than 
 another. The assumption that there must be one 
 and only one intrinsically right way of dealing with 
 any practical question is often tacitly made, to the 
 hindrance of rational agreement. Its fallacy is 
 evident to any one who has learned the distinction 
 between natural and conventional justice ; but that 
 distinction itself, so far from being familiar to lay- 
 men, has been ignored and even despised by learned 
 persons who should have known better. Certainly 
 no man is like to become wise by presuming that 
 Aristotle was a fool — but some teachers who enjoyed 
 high repute in the nineteenth century talked as if 
 that was their expectation. Lay people suppose 
 that every legal problem is like a simple equation ; 
 whereas the problems of the political sciences, not 
 excluding law, not seldom are more like equations 
 of higher degrees in being capable of two or more 
 solutions. 
 
 Yet it must be allowed that the lay people are 
 not without excuse in confoimding the judge's office 
 with the moralist's. For the law of the courts, though 
 it cannot embrace the whole of morality, can exer- 
 cise appreciable influence on moral standards within 
 certain limits and under certain conditions ; and 
 those conditions are nowadays to be found in many 
 jurisdictions, and perhaps are wholly wanting in few 
 or none that need be considered. In a jurisdiction 
 
268 ESSAYS IN THE LAW 
 
 of moderate extent and homogeneous population, 
 whose laws have never been affected by foreign 
 conquest, it is generally true that positive law will 
 only reflect current moral opinion. In such a 
 commonwealth the embodiment of such opinion and 
 practice in formulated law can only furnish a con- 
 servative element at times when there is danger of 
 relaxation. Even so, the moral standard assumed 
 by judges and legislators will probably be the standard 
 of the better sort of men and somewhat, though not 
 very much, above the average level of common 
 practice. But in modern societies the case is not 
 often so simple. Ethical feeling and judgement are 
 not uniform throughout a complex and specialised 
 community, but vary accordingly to the education, 
 surroundings, and pursuits of different social groups 
 as soon as one passes from the rudimentary principles 
 to their application. A Quaker's rules are or were 
 stricter in some ways than an Anglican's ; but if 
 an Anglican divine is a Quaker merchant's customer 
 he may (or in Charles Lamb's time might) find that 
 the Quaker's morality in the things of his trade is 
 of a mercantile quality which his own views of strict 
 good faith will not pass as reaching the mark of the 
 highest Christian ethics ; and there was a time when 
 John Bright, a member of the Society of Friends and 
 full of philanthropic zeal, was obtuse in the matter 
 of the Factory Acts. 
 
 Now the law, standing detached from mercantile 
 and other class interests, will probably maintain in 
 such cases a standard of requirement in matters of 
 
LAY FALLACIES IN THE LAW 269 
 
 good faith, and the like, at least as high as that of 
 right-minded citizens outside the interest for the 
 time being in question, and therefore higher than 
 the standard accepted by most persons within it. 
 Notoriously this is so as regards various usages of 
 trade which the law disapproves and the traders 
 with few exceptions declare to be not only harmless, 
 but necessary for the conduct of their business. How 
 far the traders may be right in particular cases is 
 not a question material here. In some cases it is 
 certain that the zeal of the court for perfect justice 
 carried it so far as to make impracticable demands 
 on plain men's knowledge and diligence, though not 
 in matters of commerce. Old English practitioners 
 can remember the time when the Court of Chancery 
 judged trustees, who are usually no wiser, save as 
 years may bring wisdom, than their cestuis que 
 trust, by a standard of infallible omniscience and 
 impeccable vigilance which probably no Chancellor 
 or Master of the Rolls ever attained in his own 
 person. The result was not that trustees became 
 infallible, but that Parliament intervened to make 
 it possible for a man of ordinary prudence to accept 
 a trust. But on the whole the guardianship of class 
 morality and custom by a central power representing 
 the best mind of the Commonwealth has been efiectual 
 and profitable. The lawyers alone would never have 
 made a law merchant at all, but lawyers and merchants 
 together have made a far better one than merchants 
 without lawyers would have made. Consider for 
 example what our law of agency is, and what it 
 
270 ESSAYS IN THE LAW 
 
 would kaVe been if divers arguments for laxer con- 
 struction of an agent's duties, maintained in quite 
 good faith, for all that appears, had prevailed. At 
 this day there is no difficulty in finding among the 
 decisions reported from month to month ample proof 
 of practices being approved or tolerated among 
 traders which will not pass uncensured in a court of 
 justice. 
 
 The layman — if a layman should overhear us — 
 may well ask upon this : If the law keeps commercial 
 morality in order, who looks after the professional 
 morality of lawyers themselves ? A question cer- 
 tainly deserving answer, but not likely to receive a 
 short one, for the answer is spread over the whole 
 history of the profession. No sooner were courts 
 and judicature established, whether at Rome or at 
 Westrhinster, and advocacy recognised as a profes- 
 sion, than it was also recognised that the profession 
 of assisting men to seek or defend their just rights 
 was legitimate only on condition of not becoming a 
 mere trade. The practitioners of the Roman and of 
 the Common Law guarded themselves and their 
 successors by traditional and extremely stringent 
 rules, different in details but aiming at the same 
 objects by fundamentally similar means. If these 
 rules do not, like some of those which the medical 
 profession has imposed on itself, go back to Hippo- 
 crates, their severity at least has nothing to lose by 
 the comparison. Not that lawyers are by nature 
 much more virtuous and self-restraining than other 
 men ; but they have known well from the first that a 
 
XI LAY FALLACIES IN THE LAW 271 
 
 strict and even austere professional discipline is the 
 price of public confidence. 
 
 There are special conditions, moreover, and they 
 are becoming more frequent in recent times, under 
 which contact with a foreign system of law may have 
 material effects on some parts of social conduct, and 
 thereby, in the long run, on moral standards. 
 
 The greatest example of this process may be seen 
 in India, where before the days of British rule there 
 were divers and many customs of religions, castes, and 
 even families, and each religion had its own schools of 
 learned commentators, but there was not much general 
 law of any kind and practically no commercial law. 
 Within living memory, systematic legislation has intro- 
 duced codified and more or less simplified versions of 
 English law in several of its branches. These codes, 
 or some of them, have also been adopted in some 
 Indian protected states and in several colonies and 
 protectorates beyond India. In this way not only the 
 rules of the Common Law, but the standards of con- 
 duct implied therein, come to Asiatic and African 
 people (for they have gone as far as the Sudan) speak- 
 ing with authority, and the Anglo-Indian codes exer- 
 cise a distinct ethical influence whose results are only 
 beginning to appear. I have no doubt that French 
 law is doing the same in the north of Africa. The 
 process is of great interest to the student of social 
 development and of what the philologists call, in no 
 vituperative sense, "contamination." But such facts 
 are a long way from justifying any expectation that 
 even when it goes on a missionary journey, much less 
 
272 ESSAYS IN THE LAW ^i 
 
 in its native air, any system of law should do tte work 
 of a complete moral schoolmaster. 
 
 Peradventure it is better for us if the lay people 
 expect too much edification at our hands than if they 
 regard the law of the land as a mere collection of 
 arbitrary commands and prohibitions unrelated to 
 any rational or ethical principle, which, it is to be 
 feared, some of them do. This last delusion was 
 rather fostered by the dogmatic (but by no means 
 accurate) school of legal philosophy which prevailed 
 in England in my youth. A similar doctrine has 
 apparently made some way among German publicists 
 of late years ; it is of a piece with the Prussian theory 
 of the infallible state whose iron has entered deep into 
 the German soul, to be purged away only at the cost 
 of blood and iron untold. Hereupon we might ride 
 ofi on vigorous denunciation of the German heresy, 
 and so escape from examining our own conscience ; 
 but I do not propose to take that course. I conceive 
 this is a case where practising lawyers, being familiar 
 with the necessity of certain distinctions, assume and 
 act upon them without making them explicit ; and 
 the result is to lay a trap for studious amateurs. We 
 declare that law, whatever it is, must at least not be 
 arbitrary, which is true, first, in the sense that justice 
 must be administered without capricious preferences, 
 truly and indifferently as the old form of oath goes ; 
 and next, that the substance of the law must hang 
 together somehow and not be a mere heap of isolated 
 rules. ■ Many .persons might, perhaps, suppose that 
 denying law to be arbitrary is the same thing as 
 
XI LAY FALLACIES IN THE LAW 273 
 
 affirming it to be made or controlled by some kind of 
 popular government. But this is matter of politics, 
 not of law. There was no popular voice in Justinian's 
 consolidation of the Koman law, nor in the making of 
 the Napoleonic codes ; none in that of the Anglo- 
 Indian Codes, except that the Government of India 
 made them in the exercise of powers conferred by the 
 Parliament of the United Kingdom ; not much in that 
 of the German Codes, of which the Civil Code is the 
 latest, although they were passed by the Reichstag. 
 Yet nobody would affirm that any of these codifica- 
 tions was other than an honest endeavour to lay down 
 just and impartial rules ; and few competent persons 
 would deny that, although none of them is free from 
 shortcomings, on the whole they have all achieved 
 good results. Even an amateur politician can see 
 this ; but when it comes to detail, he is apt to demand 
 a scientific reason for every jot and tittle of the law, 
 and talk of arbitrary technicality whenever lawyers 
 fail to produce a reason obvious to his own under- 
 standing. 
 
 Now, just because civilised law must aim at con- 
 sistency, and must be a work of art, there may often 
 be a good reason which only lawyers can appreciate. 
 Few laymen look beyond the first impression of the 
 particular case. Then, as has already been observed, 
 there are the cases in which it is easy to show that 
 some rule is needful, but impossible or very difficult 
 to prove that the rule actually preferred is better than 
 any other. Here again there may be reasons of har- 
 mony with other parts of the law and settled rules 
 
274 ESSAYS IN THE LAW 
 
 (though suck harmonies are too often neglected in 
 current legislation), which an untrained mind is not 
 capable of apprehending. But there are also many 
 cases in which it really matters very little what the 
 rule is, if only it is certain and not unreasonable. If 
 lawyers would oftener have the courage to say so, 
 the lay people might be the better for it. Sticking at 
 such details obscures the general view. The fact re- 
 mains that law, on the whole, expresses the common 
 conscience of those who are subject to it. If it did not, 
 it would not be obeyed, at least in a free country. 
 Not that it can exactly keep pace with public opinion ; 
 sometimes it lags behind, sometimes it is in advance. 
 When an enlightened minority complains, as often it 
 does with justice, of matters requiring amendment 
 that have too long been left unamended, it will almost 
 invariably be found that the public do not really care. 
 Either prejudice or pure ignorance may account for 
 this. 
 
 The false conception of law merely under the form 
 of prohibition is largely due to the exaggerated pro- 
 minence of criminal law in the public eye. To nine 
 lay folk out of ten the word " court " suggests a police- 
 court first, and to some of them nothing else at any 
 time. Merchants and special jurymen know better, 
 but they are a minority. Now the criminalist point 
 of view is wholly inadequate. " Thou shalt not " is 
 well enough to clear the ground, but " Ita ius esto " 
 must be the builder. The present is in some ways a 
 good time for making people see that law does really 
 build, even if part of the demonstration is painful — I 
 
LAY FALLACIES IN THE LAW 275 
 
 mean the sight of the ruin left by the tread of the 
 Prussian hoof wherever it has passed. 
 
 Perhaps the greatest of all the fallacies entertained 
 by lay people about the law is one which, though 
 seldom expressed in terms, an observant lawyer may 
 qtiite commonly find lurking not far below the surface. 
 This is that the business of a court of justice is to dis- 
 cover the truth. Its real business is to pronounce 
 upon the justice of particular claims, and incidentally 
 to test the truth of the assertions of fact made in 
 support of the claim in law, provided that those asser- 
 tions are relevant in law to the establishment of the 
 desired conclusion ; and this is by no means the same 
 thing. The difierence holds good, in our system, even 
 in criminal procedure. John Doe is found dead in 
 suspicious circumstances. It is not for any ordinary 
 court of justice, but for the police, or for a coroner's 
 inquest, which has no power to render any definitive 
 judgement at all, to find out whether John Doe was 
 killed, and to whom suspicion points. On the in- 
 formation of the executive, the state's attorney 
 prosecutes Richard Roe for the murder of John Doe. 
 The Commonwealth is in the position of a plaintiff, 
 and must prove its case as much as any other plaintiff ; 
 indeed a little more, the addition to the proof required 
 in a civil court being expressed in the current formula 
 " beyond reasonable doubt." And if the jury is not 
 satisfied that Richard Roe killed John Doe, the court 
 
276 ESSAYS IN THE LAW ^ 
 
 will not, indeed, may not, conjecture in public wIlo 
 tten did kill him. 
 
 If a contradictor is minded to search for a more 
 plausible appearance of inquisitorial procedure, as we 
 now commonly say, in our courts, be may find it in 
 the quarter most remote from criminal law, namely 
 the administrative operations of a court of equity. 
 Here the court seems to take the superintendence of 
 deceased persons' estates into its own hand in master- 
 ful, or at any rate paternal fashion, putting things to 
 rights all round, ascertaining what are the claims of 
 a score or more, it may be, of different persons, and 
 the means of satisfying them, and finally allotting to 
 every claimant his rightful share or so much of it as 
 the estate will satisfy in a due proportion. Certainly 
 this is not much like the plain and single-acting func- 
 tion of justice in an action for goods sold and delivered. 
 But the essential feature of litigation is there. The 
 court is moved to action only by the claim of a definite 
 person or group of persons in the same interest, a 
 claim which cannot be justly satisfied without dealing 
 with other claims also ; nor does the court, even here, 
 profess to assist those who do not assert their rights.^ 
 However, the English Court of Chancery had a tender 
 conscience in the matter of being quite sure that all 
 proper parties were before it, and therefore directed 
 elaborate inquiries with intentions almost too good 
 for this world. What with meticulous procedure, 
 and (it must be said) Lord Eldon's proneness to hesita- 
 tion and delay which dominated the court for many 
 
 ^ See Langdell's Brief Survey of Equity Jurisdiction, Art. vii. 
 
« LAY FALLACIES IN THE LAW 277 
 
 years, a Chancery suit became tlie synonym of hope 
 deferred without limit, and such legends arose as the 
 lay people read, and probably believe, in Bleah 
 House. Contrariwise the catastrophe of that story, 
 as framed by Dickens, makes an enormous demand on 
 lay readers' credulity by ascribing miraculous powers 
 of summary decision to this very court. A missing 
 will is discovered, and the discovery puts an end to the 
 suit with a swiftness that certainly seems to throw us 
 back to patriarchal justice. Every tiro in equity 
 practice knows that the only immediate effect must 
 have been to add one or more parties to the suit. In 
 fairness to Dickens, however, it must be observed that 
 the scene in court is judiciously not described ; we are 
 told only so much as was picked up by a quite un- 
 learned young person outside. " Esther's narrative " 
 may be compatible, on strict examination, with 
 Jarndyce v. Jarndyce having been adjourned and then 
 settled among the parties, a process which would be 
 hastened by the discovery that the estate had vanished 
 in costs. If so, Dickens might plausibly maintain 
 that he did not exceed the usual licence of novelists 
 in compressing minor incidents and omitting details 
 that are necessary in fact, but only tedious in a story. 
 Our tiro, being flushed with new learning, and not 
 having digested the precept to suffer fools gladly, 
 would probably reject any such compromise and 
 protest that the legal credulity of laymen is even more 
 omnivorous than the historical credulity of Sir Edward 
 Coke, and it is impossible to explain anjrthing to them. 
 But he would be wrong. The unlucky truth is that 
 
278 ESSAYS IN THE LAW 
 
 most lay people, for one bad reason or another, believe 
 all law to be so absurd tbat no statement whatever 
 about it is too absurd to be credible ; and they know 
 no better because lawyers have taken so Uttle pains to 
 enUghten them. Our art, like all arts and sciences, 
 must have its proper terms, which can be understood 
 only by training and rightly used only with trained 
 experience. But there is no reason why its broad 
 principles and even much of its particular application 
 should not be set forth in language intelligible to all 
 educated men ; and so far as we lawyers fail to do this 
 in a democratic age, we shall have ourselves to thank 
 for any ill consequences. 
 
XII 
 
 KEFORMATION AND MODERN DOCTRINE 
 OF DIVORCE 1 
 
 English Church Law and Divorce. Part I. Notes on the 
 Reformatio Legum Ecclesiasticarum. By Sir Lewis 
 DiBDiN. Part II. Notes on the Divorce and Re- 
 marriage of Sir John Stawell. By Sir Charles B. H, 
 Chadwyck Healey. London : John Murray. 1912. 
 
 A History of Divorce. By S. B. Kitchin. London : Chapman 
 & HaU, Lim. 1912. 
 
 Report of the Royal Commission on Divorce and Matrimonial 
 Causes. [Cd. 6478.] London : Stationery Office. 1912. 
 
 The Divorce Commission : the Majority and Minority Reports 
 summarised. By the Secretaries to the Commission [H, 
 GrORELL Barnes and J. E. G. de Montmorency], with 
 prefaces by [Lord Guthrie and Sir Lewis Dibdin]. 
 Westminster : P, S. King & Son. 
 
 Minutes of Evidence [of same Commission]. 3 vols. (Cd. 6479- 
 6481.) 
 
 Appendices to Minutes of Evidence and Report. (Cd. 6482.) 
 
 Ajsty one wlio wishes to follow either the histary or the 
 contemporary polemics of marriage and divorce with- 
 out falling iato confusion must fix it well in his mind 
 that he is dealing with ambiguous terms and must 
 constantly look out for ambiguities and misunder- 
 standings, A positively valid marriage is one thing ; 
 
 1 Review reprinted from L.Q.B. xxix. 85 (1913), with one correction. 
 
 279 
 
280 ESSAYS IN THE LAW ^n 
 
 the reputation of marriage (or as it is sometimes called 
 de facto marriage) is another ; a promise to marry is 
 another. But all these may be and have been mixed 
 up at different times with bewildering results. Then 
 Latin " divortium," or English or French " divorce," 
 may in different contexts mean, first, a declaration of 
 nullity, in other words that there has not been any 
 marriage, or any valid marriage ; or, secondly, a decree 
 of separation which does not dissolve the marriage of 
 the parties or authorise the re-marriage of either 
 (divorce or separation a mensa et toro) ; or, thirdly, a 
 decree which does dissolve the marriage and authorise 
 the parties or at any rate the innocent party to marry 
 again (divorce a vinculo). These distinctions are ele- 
 mentary, but need much repetition. 
 
 Sir Lewis Dibdin's and Sir Charles Chadwyck 
 Healey's composite volume is a permanent contribu- 
 tion to historical scholarship. Sir Lewis discusses the 
 " Keformatio Legum," a long -incubated project for the 
 establishment of a new English canon law, which 
 seemed more than once on the point of being formally 
 enacted, but never was. Amateurs of renaissance MS. 
 will welcome some beautiful facsimiles. As arising 
 out of this, the opinions and practice of the early 
 Reformation period in the matter of divorce are con- 
 sidered. It seems plain to the modern legal mind that 
 the rejection of obedience to Rome could not if so facto 
 confer on ecclesiastical courts a new substantive juris- 
 diction which they had never claimed or exercised. 
 But we doubt whether any one would have put it 
 in that way at the time. Certainly many of the 
 
XII EEFORMATION & MODERN DIVORCE 281 
 
 reformers appear to have thought, in effect, that the 
 Church (not the State) had an inherent jurisdiction, 
 whether by natural or by divine law, or both, which 
 had been suspended by an usurped and abusive Roman 
 discipline ; and, although no case has been found of 
 an ecclesiastical court purporting in terms to grant 
 a divorce a vinculo, nor do the canons of 1603-4 
 recognise any such jurisdiction, many persons acted 
 on the view that the familiar divorce a mensa et toro 
 had acquired the same operation. 
 
 Ultimately a compromise of a peculiarly English 
 kind was arrived at, which still exists in Ireland, and 
 has been transplanted to Canada. The House of 
 Lords undertook to grant divorces a vinculo by a pro- 
 cess which took the form of a privilegium, an exercise 
 of the whole Parliament's legislative sovereignty, but 
 in substance was judicial ; and they met scruples half- 
 way, more or less, by making the process as cumbrous 
 and expensive as possible. 
 
 The Stawell case, with which Sir Charles Chadwyck 
 Healey's essay is concerned, is particularly instructive. 
 The learned author has completed the ascertainment 
 of the facts, which were unpublished till 1910. Sir 
 John Stawell's suit for divorce was heard by a special 
 commission of delegates in 1565. The decree was 
 for separation a mensa et toro in approximately 
 the common form, but without security against re- 
 marriage. In 1572 Sir John, being minded to marry 
 again, applied to the Bishop of Bath and Wells. A 
 mediaeval or modern bishop would have said, at once 
 that in the first wife's lifetime such a thing was 
 
282 ESSAYS IN THE LAW 
 
 impossible. Gilbert Berkeley passed on the question 
 to Arch-bisliop Parker as being beyond bis competence, 
 but evidently with tbe desire of a favourable answer. 
 Then th.e Arcbbisbop actually did issue a marriage 
 licence, a dispensation from banns in the ordinary 
 form, without mention of the first marriage or the 
 divorce, but with a special reservation apparently 
 intended to save all possible grounds of objection to 
 all possible persons, including Stawell's former wife 
 {quasi dicer et " Take a licence at your own risk "). The 
 marriage took place, and the first wife brought her suit 
 for restitution, which was compromised before hearing. 
 Sir John made a settlement carefully framed to guard 
 against the risk of children of the second marriage 
 being held illegitimate. After his death the first wife 
 claimed and ultimately obtaiaed her dower. These 
 facts make it clear enough that there was a conflict of 
 opinion, so grave a conflict as to make it impossible 
 for any prudent man to think his own opinion quite 
 safe. 
 
 Mr. Kitchin's history seems acceptable as a general 
 popular account. It may be open to criticism in 
 places, but the marriage problem in Europe resembles 
 the agrarian problem in Ireland, as once reported to 
 the present writer by a shrewd observer : there is no 
 doubt as to the material facts, but endless divergence 
 as to the inferences. It is certain that the earliest 
 authorities are ambiguous, and conflicting opinions 
 were held in high places down to the thirteenth 
 century. Gratian and Vacarius both proposed to de- 
 fine the essentials of marriage in ways very different 
 
XII EEFORMATION & MODEEN DIVORCE 283 
 
 from that wMcli prevailed. See Maitland in L.Q.R. 
 xiii. 133, preferring Vacarius. It is also certain that 
 in England opinion and practice were largely unsettled 
 for a full century after tlie rejection of Papal authority, 
 as we have just seen. 
 
 Agreeing with great part of the learned author's 
 conclusions, and regarding many of his particular 
 reasons as sound, we feel the more called on to state our 
 dissent from one of his general propositions, namely, 
 that " the burden of proof is on those who say that 
 marriage is not dissoluble by the parties like any other 
 contract." Marriage is not like any other contract. 
 The contract de praesenti, when complete, creates a 
 standing relation whose duration and incidents are 
 determined not by the parties but by the law. Were 
 it otherwise, parties marrying under a law which 
 allows divorce could contract that neither of them 
 should sue for a divorce at all, or not until after some 
 fixed lapse of time such as ten years : which Mr. 
 Kitchin would hardly approve. On what terms 
 marriage shall be dissoluble is a question of public 
 policy, and it has been so dealt with by every law in 
 the world — even the Canon Law, however disastrous 
 we think the failure of the canonical system. Neither 
 are promises to marry de futuro treated exactly like 
 other promises. In many systems of law they are not 
 actionable. In the Common Law they are allowed, as 
 mutual promises, to be good consideration for one 
 another, and actionable accordingly. Nevertheless 
 the contract has anomalous incidents as to measure of 
 damages and otherwise. 
 
284 ESSAYS IN THE LAW 
 
 AVe are sorry to liave to observe that many entries 
 in tlie list of authorities at tlie end are inaccurate 
 or defective in dates and other particulars. An un- 
 instructed reader would suppose that Lecky lived to 
 publish or at least re-edit his books in the twentieth 
 century. The present writer cannot tell at sight, for 
 want of any date at all, whether the Fockema Andreae 
 who wrote Annotationes ad Grotium is the living 
 scholar of that name or some one of an earlier genera- 
 tion. On the other hand, references to Dante give a 
 pleasant scholarly flavour to a book dealing with 
 mediaeval matters. Mr. Klitchin cannot suppose, as 
 an unwary reader might think in one place, that pass- 
 ing a few centuries in Purgatory is a severe blot on the 
 character of a Pope, or any one ; Dante met many 
 excellent persons there. Only saints, heroes, and 
 martyrs go straight to Paradise, and Dante not only 
 expected a share of Purgatory for himself but had a 
 shrewd guess as to the appropriate circles. 
 
 On principle there is much to be said for a combina- 
 tion of wide legal freedom with a moral public opinion 
 strong enough to check frivolous or capricious exercise 
 of lawful discretion. But this cannot be realised 
 except in a homogeneous and rather small community. 
 For a time it was so under the Eoman republic, but 
 the moral equilibrium broke down when Rome became 
 cosmopolitan. In modern times, moreover, a decided 
 public opinion is apt to demand the sanction of positive 
 law to its full extent ; and it is hard to convince the 
 modern citizen — especially the half-educated man who 
 has dabbled in political theory and seen little of 
 
xu EBFORMATION & MODERN DIVORCE 285 
 
 public affairs — that the demand may be unwise. We 
 cannot restore Roman republican conditions, and it 
 does not seem that it would be a hopeful experiment 
 to restore Roman republican law. 
 
 Mr. E. S. P. Haynes, a witness before the Royal 
 Commission, has collected in a small volume {Divorce 
 Problems of To-day : Cambridge, W. Heffer & Sons) 
 articles of various dates on lines generally resembling 
 Mr. Kitchin's. As they are addressed to the lay public, 
 there is no need to comment on them here ; but the 
 collection, though not systematic, is a handy and 
 vigorous exposition of the writer's point of view. 
 
 As to the Report of the Royal Commission, those 
 of our readers who are interested have already had it in 
 their hands for about two months, and it would not be 
 useful to give any account of its contents here. We 
 may note, however, that in jurisdictions where divorce 
 is allowed at all there is a very strong consensus for 
 allowing desertion as a sufficient cause. England and 
 Canada seem to stand alone in excluding it. The 
 summary of the two reports prepared by the secretaries 
 to the Commission will be of great convenience to the 
 reader who has neither time to read through the full 
 text nor the art of skimming blue-books. Its correct- 
 ness is certified in general terms by Lord Guthrie, 
 and explicitly as to the minority report by Sir Lewis 
 Dibdin. Lord Guthrie's observations on the extent to 
 which the two reports agree deserve special attention. 
 " The sacredness of the marriage tie, and its normal 
 indissolubility, are maintained in both, while neither 
 proposes to repeal the Act of 1857. On the questions 
 
286 ESSAYS IN THE LAW xn 
 
 of equality between the sexes, and restraint of publica- 
 tion of offensive details, tlie two reports are at one. 
 On the right of the poor to equal treatment with the 
 rich there is no difference in principle, although there 
 is divergence of view on certain details. It is only on 
 the question of extension of grounds that there is 
 radical difference of opinion." Accordingly those 
 who would go farther than the majority get no en- 
 couragement ; and the section of Anglicans who would 
 like to abolish divorce a vinculo without restoring 
 the older and wider canonical doctrine of nullity, and 
 thereby to establish a harder rule than has ever existed 
 in any considerable jurisdiction, is even more sum- 
 marily ruled out. 
 
 It is a remarkable fact, though ignored by at least 
 one Catholic controversialist, that the Church of 
 Rome, confiding in the strength of her spiritual dis- 
 cipline over her own flock, acquiesced in the divorce 
 provisions of the German Civil Code, which have been 
 in force since 1900. The same ingenious writer, with 
 exquisite impertinence, lectured the majority of the 
 Commission for talking of things of which they had 
 no practical experience and no sufficient imagina- 
 tion ; as if Sir Frederick Treves were a mere labora- 
 tory physiologist, Mr. Spender an obscure journalist 
 unversed in public affairs, and Lord Gorell an amateur 
 jurist who had never been inside the Divorce Court. 
 It is now known that Lord Hannen's conclusions from 
 long special experience were like those of the majority 
 report. 
 
XIII 
 ARABINIANA ^ 
 
 Duncan. What bloody man is that ? 
 
 Malcolm. This is the Serjeant. — Macbeth, Act I. so. 1. 
 
 Only two publislied notices of this book have come 
 to the present writer's knowledge. One is in Lady 
 Holland's Life of Sydney Smith, as noted by the 
 reporter himself in a copy of the book now in my 
 possession ; this shall be set out in due course. The 
 other is in an old article from the Pall Mall Gazette 
 pasted into the same copy. Neither of them can be 
 said to add much to our information. The anony- 
 mous article, published in 1867, contains at least 
 one mistake ; for it calls Arabin Common Serjeant, 
 an office he never held : and I do not think the author 
 ^vas a practising lawyer. His judgement was not 
 amiss, however, whether derived only from the book 
 itself or from some private tradition, when he 
 described Serjeant Arabia as "an original, absent, 
 eccentric man, not wanting in mother wit, but very 
 much so in the faculty of expressing himself ration- 
 ally." This William St. Julien Arabin, Serjeant-at- 
 
 1 Cornhill Magazine, Jan. 1911, with some corrections from later 
 information, 
 
 287 
 
288 ESSAYS IN THE LAW 
 
 Law, one of the Commissioners of the Central Criminal 
 Court, and Judge of the Sherifi's Court in London, 
 administered justice from 1827 till his death in 1841, 
 besides acting as Judge Advocate-General for a short 
 time ; and I have found no record of any public 
 dissatisfaction with his performance. Indeed there 
 is but scanty record of any kind. A short and not 
 too careful obituary notice in the Annual Register 
 tells us that the Serjeant was the only son of a 
 general, succeeded to extensive estates in Middlesex 
 and Essex, and died at the age of sixty-six at his 
 residence. High Beech, Essex. It leaves the reader 
 to suppose that Arabin was a bachelor, whereas in 
 fact he was married and left issue (see Debrett, s.v. 
 Meux). Father and son are alike unknown to the 
 Dictionary of National Biography, neither has any- 
 thing been found in legal periodicals. The seat at 
 High Beech, Essex,^ and the property in Middlesex, 
 explain an intimate knowledge of the Uxbridge 
 neighbourhood, and brickmakers' manners therein, 
 of which a sample will be given. It may be difl&cult 
 to laymen who have no experience of reporting to 
 believe that a judge could be efficient who addressed 
 a convicted prisoner in these terms : "I have no 
 doubt of your guilt ; you go into a public-house and 
 break bulk, and drink beer ; and that's what in law 
 is called embezzlement." 
 
 Stronger judges have taken liberty, now and then, 
 
 1 Occupied by the Tennyson family, 1837-1840, see Tennyson: a 
 Memoir, i. 150. "The house and park were pleasant enough." Apparently 
 the owners were somewhere near ; Tennyson knew and liked Mrs. Arabin, 
 see bis letter from High Beech in Tennyson and his Friends, p. 27. 
 
xm AEABINIANA 289 
 
 to be concise and masterful ; there is a legendary 
 summing-up of Baron Martin's in these words : 
 " Gentlemen of the jury — the man stole the boots. 
 Consider your verdict." Baron Martin's law, how- 
 ever, was beyond suspicion ; he knew better than to 
 confuse the lay people in court with the highly 
 technical definition of larceny, but if he had given 
 it at all he would have given it correctly. 
 
 Reporters and editors are more charitable than 
 the lay people. They know very well that competent, 
 learned, and even wise persons do say many thiags 
 which would look passing strange if they were printed 
 exactly as they were said and mthout the context 
 and circumstances ; and on the whole we are free to 
 beheve that Serjeant Arabin's charges were more 
 likely to let a humorous rogue escape (as indeed 
 the book shows they sometimes did) than to cause 
 London juries to go astray to any serious extent. 
 It would be too much to maintain that Arabia was 
 learned or wise, but it may be a pious or at least a 
 " probable " opinion that he was competent in his 
 own eccentric fashion. If any person be living who 
 could be ofiended by the present publication, which 
 at this date is not likely, these considerations may 
 suffice to show that there was never real cause of 
 ofience in the innocent mirth which Arabiniana has 
 added for the last two generations to the profes- 
 sional diversions of the Common Law Bar. The 
 reporter himself did not think it needful to conceal 
 his identity, for he signed the preface — a piece of 
 solemn burlesque too technical to be quoted here — 
 
 u 
 
290 ESSAYS IN THE LAW ^^ 
 
 witli his true initials " H. B. C." There is no reason 
 for not giving his name in full except that it is good 
 to reserve a few traditions for the faithful, and that 
 the disclosure would signify very little to the world 
 at large. He was assisted, moreover, by quite haK- 
 a-dozen learned friends, to whose communications 
 several of the Serjeant's dicta, and some of the best, 
 are due. These are acknowledged in the regular 
 professional form as being ex relatione C. P., or as 
 the case may be. No variation in style can be 
 discovered between the sayings preserved by H. B. C. 
 and his several companions, and this is pretty good 
 warrant that the reporting was correct. 
 
 Here is a group of judicial remarks on the morals 
 of the home counties. In the original the cases are 
 duly identified by name and date, and one indication 
 is peculiar to this volume of reports. " The student 
 will observe," says the Preface, " that A.P. signifies 
 Ante Prandium ; and P.P., Post Prandium." From 
 this we may learn that in the reign of King WiUiam 
 IV. the Court still sat after dinner (the luncheon 
 interval not having been at that time introduced) ; 
 but at least one student has diligently perused 
 Arahiniana without finding any manner of dif- 
 ference between the ante-prandial and the post- 
 prandial utterances of the Court. Any reader who 
 thinks his research may be more successful is therefore 
 referred to the book at large. If he is a member of 
 Lincoln's Inn, he will find it in that honourable 
 Society's library, rather ignominiously sandwiched in 
 a volume of commonplace pamphlets. 
 
^™ ARABINIANA 291 
 
 Of had neighbourhoods, hrichmakers, and young women with 
 children in their arms. 
 
 The Court. I know High Wycombe ; it is the worst 
 neiglibourhood on the face of the earth. The whole country 
 is covered with brickmakers. They come from all parts of 
 the world. I know aU about them. 
 
 Indictment for stealing pigs. 
 
 Barry, for prisoner, called Mary Hall. On her entering 
 the box, the Court addressed her in these words : " Now, 
 young woman, for you are a young woman, and have a child 
 in your arms, if I catch you tripping, I will put you where the 
 prisoner is. I have given you warning kindly : you had better 
 say you know nothing about it." 
 
 The prisoner received a good cliaracter from three 
 witnesses. 
 
 The Court, in charge. He was a brickmaker. Now, we 
 all know what a brickmaker's character is ; at least, I do. 
 Gentlemen, I know the prosecutor, Mr. Austin, well, and there 
 is not a kinder-hearted man in the whole county of Essex 
 [the prosecutor lived at Vocbridge], and I am quite sure he 
 can have none but a proper feeling in this case. 
 
 Not guilty. 
 
 [The prisoner, in his brief, stated that his premises 
 were searched, and no hving animal was found in 
 his possession except his own person, and suggested 
 that the pigs had strayed for a little recreation.] 
 
 The Court, in charge. This is a case from TJxbridge. I 
 won't say a word, as can any one doubt the prisoner's 
 guilt ? 
 
292 ESSAYS IN THE LAW 
 
 The Court, to constable. Is Barnet a very honest place ? 
 Constable. No, my lord. 
 
 The Court. No. To my certain knowledge there ought 
 to be fifty constables there. 
 
 Brickmakers were not Serjeant Arabin's only 
 special aversion. Sincerity calls for tlie painful 
 admission tkat altkough. lie was tke fatter of a 
 family he was an anti-feminist. 
 
 E. V. Mary Ann Kelly, May 18, 1833. 
 
 Verdict, Guilty. 
 
 The Court, to prisoner. You must go out of the country ; 
 you have disgraced even your sex. 
 
 A female witness did not speak out. 
 
 The Court, to witness. You come here with your heads in 
 false wigs. If you can't speak out, I'll take off your bonnet ; 
 if that won't do, you shall take your cap off ; and if you don't 
 speak out then, I'll take your hair off. 
 
 [But on a recent occasion in a County Court a 
 female witness, wken tlie judge complained tkat he 
 could not see her face, offered to take off her hat, 
 which His Honour disallowed with some indignation.] 
 
 Indictment for stealing a pail of milk. 
 
 Jane Watson examined by the Court. 
 
 The Court. What is your husband's name ? 
 
 Witness. I am not married. 
 
 The Court. I mean he who is Ruth Watson. 
 
 Thomas Watson examined by the Court. 
 
 The Court. Is that your pail ? 
 
 Witness. Yes. 
 
^m AEABINIANA 293 
 
 The Court. Well, although you are married, I suppose 
 you are man enough to swear to a pail of milk. 
 
 Nevertheless there are notes of a more chivalrous 
 mood. 
 
 The Court. One woman is worth twenty men for a witness 
 any day. . 
 
 Witness, a shoemaker, did not speak out, and said 
 he had a cold. 
 
 The Court. A man with a cold is not fit to try a lady's 
 shoes on. 
 
 It would even seem that women, or at any rate 
 tall women, are presumed to be wise. 
 
 The Court, to witness. Woman, how can you be so stupid ? 
 You are tall enough to be wise enough. 
 
 What was the standard of intelligence applied by 
 Serjeant Arabin to the mere rjian ? — the " external 
 standard " of reasonable competence which Mr. 
 Justice Holmes of the American Supreme Court has 
 shown to be a fundamental conception in our modern 
 law ? The report is rather meagre on this point. 
 
 Per curiam. No man is fit to be a cheesemonger who 
 cannot guess the length of a street. 
 
 The credibility of Irish witnesses was a doubtful 
 question for the learned Serjeant. Like many great 
 men, he had prejudices, but did not fetter himself 
 by rigid consistency. 
 
 April 9, 1832. A.P. 
 
 An Irish witness admitted that he had told some lies 
 about the case ; but insisted that all which he swore was true. 
 
 The Court, in charge. The witness is an Irishman, and 
 
294 ESSAYS IN THE LAW 
 
 people from that country, very generally, do not speak the 
 truth when they are not on oath ; but they may be believed 
 when they are. 
 
 July, 1832. 
 
 The Court, in charge. These Irish witnesses are a good- 
 humoured set of people, and don't much mind what they swear. 
 
 Phillips, amicus curiae. Why, my lord, your father was an 
 Irishman. 
 
 The Court. I know ; I only mean that they have a 
 very pleasant roundabout way of expressing themselves ; they 
 are all eloquent. 
 
 Ex relatione C. P. 
 
 Probably this Phillips was the same person as the 
 learned friend C. P., for tbe Law List of 1832 shows a 
 Charles Phillips practisiag on the Oxford Circuit, 
 which was also H. B. C.'s, and at the London, Middle- 
 sex, and Westminster Sessions. 
 
 Londoners, it seems, were credited with being men 
 of prompt action. " It don't take a man long to 
 change his breeches in London " ; to which H. B. C, 
 after the custom of the early reporters, adds a note 
 of his own : " Semble e contra ia the country." Some- 
 times we get ethical generalities on which the student 
 must exercise his faith, hoping (as my Lord Coke 
 saith) that in some other place, at some other time, 
 the meaning will become clear to him. " Now, what 
 honest man could have any object in turning a horse's 
 head roimd the corner of a street ? I have no opinion 
 on the subject." Once or twice a considerable body 
 of miscellaneous observation is collected. 
 
 Of fat pigs, horses, constables, and the justice of the case. 
 R. V. Edwards. February 22, 1834. A.P. 
 
xni AEABINIANA 295 
 
 The Court, in charge. I know all about these things ; the 
 pigs were fat, if they were worth £4 each. And so a man drove 
 the cart, and another went behind to keep the pigs between 
 him and the cart ; and you see, gentlemen, that it is a great 
 happiness in our courts, that we can see the witnesses examined, 
 and know exactly whether they teU the truth or not. And 
 this witness said, " I know the coat, and I am sure of it, for 
 it was blue or black," and he cannot be mistaken. The 
 constable is a shrewd man, as most men in the country are, 
 who know the habits of horses, and he lets the horse go, 
 and he finds his way to a row of houses. It was not necessary 
 that he should go to the very house ; he goes to one, which is 
 enough to satisfy the justice of the case, and nothing can be 
 clearer. 
 
 The words last quoted lead the memory to another 
 dictum which stands alone in its curious verbal 
 infelicity : "If ever there was a case of clearer 
 evidence than this of persons acting together, this 
 case is that case." As a contrast we may take one 
 really pointed remark, " a little out of fashion," but 
 sensible enough. 
 
 How many Wives and Children a man may have. 
 E. V. Fatjlkktee. January 3, 1834. A.P. 
 
 Prisoner said he had a wife and four children. 
 
 The Court. Never mind. You may have twenty wives 
 and twenty children, but you must not abuse the public. 
 
 Ex relatione F. P. W. 
 
 So did the learned Serjeant vindicate the law's 
 impartiality. Kegard for its majesty sometimes led- 
 him into excess of zeal. 
 
 Of the wishes of all good men. 
 
 R. ■;;. Walker. January 1833. P.P. 
 
296 ESSAYS IN THE LAW 
 
 Indictment for uttering counterfeit coin. 
 
 The Court, to jury. Gentlemen, the lowest punishment 
 is imprisonment for one year. 
 
 Ellis, for prosecution. The words of the Act are, " not 
 exceeding one year." 
 
 The Court. Yes. But every good man would wish — 
 Gentlemen, consider your verdict. 
 
 Arabin, we fear, was not free from anti-Semite 
 bias. 
 
 Of Apollo. 
 
 A Jew had given the prisoner a good character. 
 
 The Court, in charge. Now, gentlemen, you have heard 
 the case ; and the Jew says, that the prisoner has borne a 
 good character ; and that he, the Jew, never heard anything 
 against him. All I shall say to that is, Credat Judaeus Apollo. 
 If he does, I don't, and dare say you won't, gentlemen. 
 
 A rather puzzling question arises from the perusal 
 and meditation of Arahiniana. Not only H. B. C, 
 but several other learned friends, were watching and 
 collecting Arabin's dicta. They must have been 
 talked over and must have circulated among the Bar. 
 In such circumstances one might expect a cycle of 
 oral tradition to grow up, which would be preserved 
 in more than one version, and exhibit the usual 
 features of agreement, amplification, and variance. 
 Now such a cycle has been preserved in our own time 
 among those members of the Western Circuit who 
 had the happiness of being acquainted with Mr. 
 Hicks of Bodmin, a great collector and teller of dialect 
 stories. Incidentally the Hicks tales have shown that 
 exact oral tradition is quite possible even in an age 
 of print and writing. My friend W. F. Collier of 
 
xm AEABINIANA 297 
 
 PlymoutJi wrote down, and in time published, a 
 collection of Hicksian stories as lie remembered tbem ; 
 the late Mr. Furneaux of Corpus Cbristi College, 
 Oxford, who dwelt still nearer to Hicks, used to repeat 
 them from his own memory ; and their text of the 
 longest and best-known story, concerning the delibera- 
 tions of a Cornish jury, was the same almost word for 
 word. There exists, however, another version which 
 goes back to an excellent authority in West Country 
 matters, the late Lord Iddesleigh ; this is much 
 shorter. I do not know that it has ever been printed. 
 Nothing of this kind has happened with Arabin's 
 sayings ; I never heard of any record or distinct 
 remembrance of them outside the thin but now 
 precious volume of H. B. C.'s making. Again, one 
 would expect that Arabin's notoriety would provide 
 shelter for some of the masterless professional anec- 
 dotes which float down from generation to generation, 
 and are retold sometimes without a name, sometimes 
 with a name taken at random. This also, so far as 
 I know, did not happen. It is true that my grand- 
 father, sometime Chief Baron of the Exchequer, 
 attributed to Arabin, as I am assured by good 
 authority, a saying which is still current enough in 
 such words as these : " Prisoner, God has given you 
 good abilities, instead of which you go about the 
 country stealing ducks." On its face the attribution 
 seems plausible ; compare the reported dictum, " If 
 you are in distress, you must apply to the proper 
 authorities, and not take the law into your own 
 hands and steal." But in fact we have good and 
 
298 ESSAYS IN THE LAW 
 
 clear witness tliat the true auttor was the Eev. Mr. 
 Alderson, a cousin of Baron Alderson's who was 
 chairman of Quarter Sessions at Sheffield.^ It seems 
 then, on the whole, that there was never an inde- 
 pendent Arabinian tradition. Perhaps H. B. C.'s 
 report was accepted among his companions as being 
 authentic and sufficient, and leaving them no occasion 
 to tax their memories. If this be not a convincing 
 explanation, I can offer none better. 
 
 The fame of Arahiniana reached America pretty 
 soon, as witnessed by a note in H. B. C.'s own 
 writing, and iuitialled by him, which is pasted into 
 the fly-leaves of a copy in my possession : 
 
 Arahiniana was reprinted at Philadelphia in 1846. The 
 edition was of twelve copies only, one of which was sent to 
 Lord Macaulay, and given by him to me. The only addition 
 is : 
 
 " Mr. Justice Story, 
 
 from Edward Everett." 
 
 I am told that these anecdotes, incredible as they seem, are 
 true. 
 
 Manuscript note in the Enghsh copy in Harvard CoUege 
 Library. 
 
 That copy could not be found when I made iaquiry 
 some years ago, neither have I met any learned 
 friend in America who has seen the Philadelphia 
 reprint. Here is a little hunt, not without reward if 
 it succeeds, to be taken up by some dihgent American 
 bibliographer. 
 
 On the same leaf is an extract from a letter of 
 
 ^ Sir Francis Doyle, Reminiscences and Opinions, London, 1886, p. 243. 
 
ABABINIANA 299 
 
 Sydney Smith's to Lord Murray: "Tell WilUam 
 Murray, with my kindest regards, to get for you, 
 when he comes to town, a book called Amhiniana, or 
 Remains of Mr. Serjeant Arahin [the title is amplified 
 without warrant], — very witty and humorous. It is 
 given away — ^not sold, but I have in vain endeavoured 
 to get a copy." The reference is to Lady Holland's 
 Life of Sydney Smith, vol. ii. p. 506 [should be 505] ; 
 the date is December 4, 1843. H. B. C. adds : " I 
 sent him a copy by Barham (Thomas Ingoldsby)." 
 What became of that copy 1 
 
 The anonymous writer in the Pall Mall Gazette 
 (April 27, 1867), whose judgement on Arabin has 
 been already mentioned, drew a parallel between 
 Arabiniana and a collection, also privately printed, 
 of sayings delivered by a learned professor of 
 geography at Gotha, named Galletti, about the 
 beginning of the nineteenth century. He found 
 specimens of these in Petermann's Geographical Mis- 
 cellany {qu. Mittheilungen ?). With great respect, 
 we conceive that the Gallettiana were not strictly 
 in the same line, but rather of the Malaprop genus. 
 
 The earth has, like all bodies, parallel circles, which inter- 
 sect each other. That is mathematical geography. 
 
 Which is the right and which the left bank of a river 
 can only be determined at its source. 
 
 If Persia was a three-sided square like America, it would 
 be easy to measure it. 
 
300 ESSAYS IN THE LAW ^ni 
 
 The Cimbri and Teutones were in fact descended from each 
 other. 
 
 Some years ago a giant was here, who was three feet and 
 a half high, leaving out his head. A student : That was not 
 very high. Professor : Yes ; but he was also a dwarf. 
 
 Merit cannot be denied to these derangements ; 
 but tte likeness is superficial, and Galletti cannot 
 be set up as a rival to Arabia. As a book of reports, 
 at all events — a book that rigorously fulfils the 
 condition of being warranted throughout by members 
 of the Bar present in Court — Arahiniana must remain 
 unique. 
 
 The book being privately printed and scarce, I 
 transcribe the title-page in due form : 
 
 Arabiniana [motto as given at the head of this article.] 
 For private distribution only. London MDCCCXLIII. Not 
 pubhshed. 
 
INDEX 
 
 Amari, Emerico, 3, 22 
 
 America, former repugnance to 
 
 courts of equity in, 194 
 Annuity, life, mediaeval equivalent 
 
 of, 189 
 Aquinas, St. Thomas, 33, 36, 42, 51 
 Arabin, Serjeant, his office, 287 
 the Tennysons his tenants, 288 
 his justice, 289 
 Arabiniana, reporters of, identifiable, 
 291 
 no other tradition of Serjeant 
 
 Arabin's sayings, 297 
 a singular but formally regular 
 book of reports, 300 
 Aristotle, natural justice in his 
 school, 33 
 his authority in Middle Ages, 39 
 Austin, John, 158 n. 
 
 Blackstone, Sir William, on cor- 
 porations, 160 
 
 Boards, departmental, 123 
 
 Braoton, rules as to gifts and delivery 
 in, 145 
 
 Cabinet, 124, 129 
 Chancery, Court of, 187, 191 
 
 Puritan dislike of, 194 
 
 not now a court of conscience, 
 195 
 
 pleadings in, 226, 234 
 
 whether court of record, 229 
 
 its administrative functions, 276 
 Chattels, gifts of, 141 sqq. 
 
 recaption, 148 
 Cicero, Marcus TuUius, on the nature 
 of law, misunderstood, 260 
 
 on natural law, 39 
 Coke, Sir Edward, on corporations, 
 164 
 
 Committees, varieties of, 113 
 of the King's Council, 117, 121 
 the Judicial Committee, 117, 120 
 of Parliament, 130 
 Common Law, moral authority of, 
 
 in India, 271 
 Composition, for feuds in early 
 
 Greek custom, 186 
 Contract, in early Roman and 
 English law, 8 
 the social, 92,, 102 
 Corporations, dbotrine of, in the 
 Common Law, 151 sqq. 
 
 Davies, Sir John, 171 
 
 Deed, originally conclusive, 208 
 
 Defence, Committee of Imperial, 
 
 126 
 Delivery, constructive, in case of 
 
 gift, 147 
 Dibdin, Sir Lewis, on the Beformatio 
 
 Legum, 280 
 Dickens, Charles, query as to the 
 end of Jarndyce v. Jarndyce as 
 related by, 277 
 Divorce, various meanings of, 280 
 Elizabethan conflicts of opinion, 
 
 281 
 Mr. Kitchin's history of, 282 
 Mr. Haynes on, 285 
 Royal Commission's report, 285 
 
 Equity, general notion of, 181 
 originally a dispensing power, 
 
 182 
 St. German on, 192 
 Ethics, relation of, to law, 265, 269 
 
 professional, 270 
 Evidence, no degrees of, in archaic 
 
 law, 204 
 Eyre, bills in, 187 
 
 301 
 
302 
 
 ESSAYS IN THE LAW 
 
 Fiction theory of corporations, not 
 involved in modem English 
 authorities, 155 
 nor in Blackstone, 160 
 
 Filmer, Sir Robert, 79-84 
 
 Fortescue, Sir John, 16, 53 
 
 Frauds, the Statute of, 217 
 
 Fulbecke, WiUiam, 18 
 
 Gentili, Alberico, 64 
 
 German Civil Code, as to divorce, 
 
 286 
 Gift, of chattels by parol, 141 sqq. 
 at donee's election, 144 
 where thing in donee's or third 
 person's control, 146 
 Gratian, the Decretum of, 40 
 
 Haynes, E. S. P., on divorce, 285 
 Healey, Sir Charles Chadwyck, on 
 
 Sir John Stawell's case, 281 
 High Wycombe, Serjeant Arabin's 
 
 knowledge of, 291 
 Hobbes, Thomas, on natural law, 
 
 59, 86 
 why not criticised by name in 
 
 Locke on Civil Government, 82 
 on the Social Contract, 105 
 Horace, misquoted in unsoholarly 
 
 law books, 264 
 
 India, British, application of natural 
 
 justice in, 74 
 Indian Appeals, reports of, 248 
 Inns of Court, government of, 134 
 International Law, foundations of, 
 
 63 
 lus gentium, 13, 34 
 naturale, 35, 37 
 
 Jurisprudence, comparative nomen- 
 clature, 2 
 
 methods, 6 
 
 history, 10 sqq. 
 
 modern position, 25 
 Jury, history of the grand, 210 
 
 the petty, 215 
 Justice, natural and conventional, 33 
 
 natural, in English law, 70 
 
 See Nature, law of 
 Justinian, his Institutes on natural 
 law, 36 
 
 mtohin, S. B., on history of divorce, 
 282 
 
 Latin, necessary for study of English 
 law, 237 
 
 Law Merchant, 55, 68 
 
 Law Reporting, Council of, 137 
 
 Law Reports, the, 241 sqq. 
 not official, 243 
 constitution of, 245 
 discretion of reporters, 250 
 preparation of reports, 254 
 
 Laymen, their erroneous assump- 
 tions about law, 259 
 
 Leibniz, 18 
 
 Lindley, Nathaniel, Lord, 152, 159 
 
 Locke, John, his theory of the State, 
 80 sqq. 
 
 Maine, Sir Henry, 3, 11, 25, 27 
 Mansfield, William, Lord, 64 
 Marriage, antiquity of Anglican 
 form, 200 
 of divorced persons. Reformation 
 
 controversies as to, 281 
 not an ordinary contract, 283 
 Montesquieu, Charles de Secondat, 
 Baron de, 19 
 
 Nature, law of, 30 sqq. 
 " secondary " rules in, 51 
 relation of, to English law, 53 sqq. 
 in British India, 74 
 
 Nature, state of, 87 
 
 Oath of grand jurors, 212 
 Ockham, WUliam of, 37, 44, 46 
 
 Parliament, committees of, in Civil 
 War period, 131 
 
 Penang, under no positive law till 
 1807, 77 
 
 Persons, fictitious and artificial, 153 
 
 Philadelphia, Arahiniana reprinted 
 at, 298 
 
 Philip the Fair, king of France, his 
 enfranchisement of bondmen, 
 47 
 
 Pleading, mediaeval and later, 224 
 
 Portia, Shakespeare's, not an advo- 
 cate, 198 
 
 Possession, relativity of, 152 
 in Germanic law, 220 
 
 Procedure and substantive law, 235 
 judicial and inquisitorial, 275 
 
 Proof, archaic methods of, in Ger- 
 manic law, 206 
 
INDEX 
 
 303 
 
 Property, Locke's theory of, 94 
 formerly synonymous with right 
 to possess, 143 
 Purgatory, 284 
 
 " Reason " in the Common Law, 57 
 Record, what is a court of, 229 
 Records, judicial, their custody, 
 222 
 use of, to check reports, 231 
 guides to, 239 
 Reformatio Legum, Dibdin and 
 
 Chadwyok Healey on, 280 
 Reformation, controversies as to 
 natural law produced by, 50 
 the like as to divorce, 281 
 Reporting. See Law Reports 
 Reports, law, relation of, to records, 
 
 233 
 Rousseau, Jean Jacques, 102, 108 
 Russell of Killowen, Charles, Lord, 64 
 
 St. German, Christopher, 16 
 
 on Reason in the Common Law, 
 
 57 
 on Equity, 192 
 
 Saints, popular petitions to, 184 
 
 Sale of goods, 218 
 
 Shakespeare, William, his law in TAe 
 Merchant of Venice, 196 
 
 Smith, Sydney, on Arabiniana, 299 
 
 Smith, Sir Thomas, 96 
 
 Sovereign, commands of, in conflict 
 with natural law, 51 
 
 Stowell, Lord, on weight of opinions 
 in the law of nations, 66 
 
 Tennyson, Alfred, acquainted with 
 Serjeant Arabin's family, 288 
 
 Trespass, why corporation cannot 
 commit, 177 
 
 Twelve Tables, 13 
 
 Ultra vires, 157 
 
 Uxbridge, reputation of, temp. Will. 
 IV., 291 
 
 Vico, Giambattista, 21 
 Vinogradoff, Sir Paul, 180, 229 
 
 Witchcraft, complaints of, in 
 Chancery, 191 
 
 Year Boohs, cases on corporate 
 capacity in, 175 
 
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