CHAP. V. laws from time to time in order to carry out the current ideas of what is equitable, or to adapt them to the changing needs of society. So it was said in a recent English case: When merchants have disputed as to what the governing rule should be, the courts have applied to the mercantile business brought before them what have been called legal principles, which have almost always been the fundamental rules of right and wrong, and it has been judicially said, with reference to criminal law, that 'justice, moral fitness, and public convenience, when applied to a new subject make common law without a precedent 2.'

The force

of precedents.

This power the Courts have rarely exercised avowedly 3, but rather under cover of exercising one or other of the functions with which they are more distinctly entrusted, viz. first, of deciding upon the existence or non-existence of such customs as they are authorised to recognise as binding; and, in the second place, of expounding, and applying to particular instances, laws which are necessarily expressed, or conceived of, in general terms1.

In the weight which they attach to the decision of a court legal systems differ very widely. While in England and in the United States a reported case may be cited with almost as much confidence as an Act of Parliament, on the Continent a judgment, though useful as showing the view of the law held

necessary connection between judicial decision and the production of law, see Dernburg, Lehrbuch des Preus. Privatrechts, i. p. 43.

1 Robinson v. Mollett, L. R. 7 E and I. App. 816.

2 Per Willes J., in Millar v. Taylor, 4 Burr. 2312, cited by Sir James Stephen, who is by no means favourable to the principle, in 3 Hist. Crim. Law, P. 359.

3 Lord Bacon mentions that when the French Parlements intended their decisions to make law they delivered them en robe rouge. Aug. Sci. viii. Aph. 7. These were the arrêts de règlements, which were thus solemnly delivered in the eves of the great festivals. Denisart, Collection de Jurisprudence, s. v. Arrest.

On the vexed question of the value of judge-made law, see Hale, Pref. to Rolle's Abridgment; Bentham, Works v. p. 477; Austin, Lectures, ii. p. 348; Prof. Hammond, in Lieber's Hermeneutics, Note N.; Prof. Pollock, Essays, pp. 239, 273; Prof. Clark, Practical Jurisprudence, p. 255.

by a qualified body of men, seems powerless to constrain CHAP. V. another court to take the same view in a similar case.

The Continental view is an inheritance from the law of Rome; for although Cicero enumerates 'res iudicatae' among the sources of law 1, and the Emperor Severus gave binding force to the auctoritas rerum perpetuo similiter iudicatarum 2, the contrary principle was finally established by a Constitution of Justin 3. The Codes of Prussia 4 and Austria 5 expressly provide that judgments shall not have the force of law, and although the Codes of France, Italy and Belgium are silent on the point, the rule in all these countries is substantially the same, viz. that previous decisions are instructive, but not authoritative; subject to certain special provisions of a strictly limited scope.

In England cases have been cited in court at least as early as the time of Edward I7. They are however stated by Lord Hale to be less than law,' though 'greater evidence thereof than the opinion of any private persons, as such, whatsoever;' and his contemporary, Arthur Duck, remarks, that the Common Law judges, in cases of difficulty, ' non recurrunt ad ius civile Romanorum, ut apud alias gentes Europeas, sed suo arbitrio et conscientiae relinquuntur.' But in Blackstone's time the view was established that the duty of the judge

2 Dig. i. 3. 37.

1 Top. c. 5. Cf. Auct. ad. Herenn. ii. 13. 3 Nemo iudex vel arbiter existimet neque consultationes quas non rite iudicatas esse putaverit sequendum, et multo magis sententiis eminentissimorum praefectorum, vel aliorum procerum; non enim si quid non bene dirimatur, hoc et in aliorum iudicum vitium extendi oportet, cum non exemplis sed legibus iudicandum sit.' Cod. vii. 45. 13.

* Landrecht, Einl. § 6.

6

5 Burg. Gesetzbuch, § 12.

E.g. the French law of 27 Ventose, Ann. viii, art. 88; the Prussian Cabinet Orders of 1836, &c.; and similar Austrian ordinances. Cf. the Gerichtsverfassungsgesetz für das Deutsche Reich, art. 137.

'In Year Book 32 Ed. I, ed. Horwood, p. 32, the court is warned by counsel that its decision' servira en chescun quare non admisit en Engleterre.'

8 Hist. Comm. Law, ch. 4.

" He continues: 'Rerum per priorum saeculorum iudices iudicatorum exemplis non semper tenentur praesentis saeculi iudices, nisi coram se agitatis existimaverint convenire, neque enim par in parem imperium habet.' De Usu et Auct. ii. c. 8. 6, 8.

CHAP. V. is to abide by former precedents 1,' and it has long been well understood that our courts are arranged in this respect in a regular hierarchy, those of each grade being bound by the decisions of those of the same or a higher grade, while the House of Lords is bound by its own decisions 2.'

Science.

There have been of late some symptoms of an approximation between the two theories. While on the Continent judicial decisions are reported with more care, and listened to with more respect, than formerly, indications are not wanting that in England and the United States they are beginning to be somewhat more freely criticised than has hitherto been usual 3.

If a decision is reversed by a higher court, a curious question arises as to the position of persons who have in the mean time acted in accordance with the original decision. Was that decision good law till it was reversed, or was it a mere mistake, upon which persons acted at their peril; their inability to predict the result of the appeal being 'ignorantia juris '4?

6

IV. Scientific discussion, Wissenschaft,' Jurisprudence,' has from time to time played a useful part in the development of rules which have often been adopted as laws. The ' responsa prudentium,' before they were clothed with an official character, received at Rome a deference similar to

2 On Decisions of the House of Lords, see Beamish v. Beamish, 9 H. L. Ca. 339; Caledonian Ry. Co. v. Walker's Trustees, L. R. 7 App. Ca. 275. For an ingenious parallel between the uniformity of judicial decision, which renders a science of case-law possible, and the uniformity of nature, see Prof. Pollock's Essays, p. 239.

3 The astounding growth of Reports in the United States, must of itself tend to produce this result.

It has been held in America that a 'subsequent decision is a legal adjudication that the prior one was not law at the time it was made,' Woodruff v. Woodruff, 52 N. Y. Ct. App. 53. In a recent English case, Henderson v. Folkestone Waterworks Co. (Q. B. Div. March 1885), a contrary view seems to have been taken. On the position of persons acting on a decision subsequently reversed, see Lieber, Hermeneutics, p. 326, and 1 Law Quarterly Roview, p. 313.

that which has been conceded in England to the 'practice of CHAP. v. conveyancers,' and to the writings of such sages of the legal profession as Lord Coke and Sir Matthew Hale.

V. Equity. As old rules become too narrow, or are felt to Equity. be out of harmony with advancing civilisation, a machinery is needed for their gradual enlargement and adaptation to new views of society. One mode of accomplishing this object on a large scale, without appearing to disregard existing law, is the introduction, by the prerogative of some high functionary, of a more perfect body of rules, discoverable in his judicial conscience, which is to stand side by side with the law of the land, overriding it in case of conflict, as on some title of inherent superiority, but not purporting to repeal it. Such a body of rules has been called 'Equity.' It consists in reality of such of the principles of received morality as are applicable to legal questions, and commend themselves to the functionary in question2. Of a resort to this expedient the two great historical instances are the action of the Praetor at Rome and of the Chancellor in England.

tor.

The Praetor, though technically without any authority to The Praelegislate, exerted, during his year of office, a power over all judicial process, which, at first confined within narrow bounds by the formality of the ancient system of pleading, became in later times almost unlimited. Each Praetor on entering upon his functions gave public notice in his edict of the mode in which he intended to give relief against the rigidity of the established system. The practical devices thus employed were developed by a long succession of Praetors into a body of 'ius honorarium' equal in bulk, and more than equal in importance, to the still unrepealed 'ius civile.' Thus it was

1 See Willoughby v. Willoughby, I T. R. 771.

2 Since the generality of a law is not the only hardship in its application which is redressed by Equity, Aristotle's definition of Tò èmieuxès as ènavópθωμα νόμου ᾗ ἐλλείπει διὰ τὸ καθόλου, Eth. v. c. Io, is hardly adequate. Elsewhere he describes it as being παρὰ τὸν γεγραμμένον νόμον, and as looking μὴ πρὸς τὸν νόμον ἀλλὰ πρὸς τὴν διάνοιαν τοῦ νομοθέτου, καὶ μὴ πρὸς τὴν τάξιν, ἀλλὰ πρὸς τὴν προαίρεσιν, καὶ μὴ πρὸς τὸ μέρος, ἀλλὰ πρὸς τὸ ὅλον. Rhet. i. 13.

CHAP. V. that alongside of the proprietary rights open to Roman citizens alone, there was introduced a system of possession protected by interdicts and fictitious actions which had all the advantages of ownership. Effect was given to contracts which could not be found in the limited list of those recognised by the law, and to wills which were neither sanctioned by the Comitia nor solemnised by a sale of the inheritance with copper and scales. While succession ab intestato still passed by law to the members of the artificial 'agnatic' family, its benefits were practically secured to the blood-relations. Naturali aequitate motus proconsul omnibus cognatis promittit bonorum possessionem, quos sanguinis ratio vocat ad hereditatem1.'

The Chancellor.

A very similar phenomenon of a double system of law, the newer practically overriding the older, while affecting to treat it with the utmost deference 2, occurred also in England, where however its introduction was less easily managed than at Rome. No great officer in England was invested with the attributes which enabled the Praetor to announce beforehand the principles upon which he intended so to administer the law as in effect to modify its operation. The Chancellor, with his clerks, could, it is true, frame new writs, but it was for the Common Law judges to decide upon their validity 3. He therefore contented himself with what proved to be the very sufficient expedient of deciding each case that was brought before him, as nearly as he dared, in accordance with what seemed to him to be its merits. In his character of 'Keeper of the King's Conscience,' he was held justified in thus exerting the undefined residuary authority which in early times was attributed to an English king*.

1 Dig. xxxviii. 8. 2.

26

'Equity follows the law.' Cf. 'ius praetorium, quod ius civile subsequitur.' Dig. xxii. 5. 14.

3 Spence, Equitable Jurisdiction, i. p. 325.

Cf. Sir H. Maine, Ancient Law, c. iii, and Early Law and Custom, c. vii.

р. 605.