Page images

the value of any law consists in the habitual reception and the spontaneous obedience which the people are expected to give to it, and which they will give when they have become accustomed to and understand its obligations. The people then may be said to be their own policemen; they habitually restrain their actions within the limits of the law, instead of waiting the compulsion of legal process. A violent change must break up, for the time being, this spontaneous observance, and some degree of embarrassment is always to be anticipated before that which is new and strange becomes habitually accepted, and its advantages appreciated, and before that which remains of the old is adjusted to it.

For this reason an imperfect law let alone may be much more conducive to the peace of society and the happiness of the people than a better law often tampered with. But there are always some particulars in which improvement by judicial decisions is impossible, and where legislation alone is adequate to the purpose. An illustration may be given of a case which has already been made use of on another point.

No action would lie at the common law for causing the death of a human being. This was as thoroughly settled by decisions as it was possible for any point to be, and the concurrence of

authority was unanimous. When, therefore, it was con[*16] cluded *that public policy demanded the giving a right of

action in these cases, a new law was obviously essential. There was no old principle that could adapt itself to such a remedy, for the established principle was distinctly adverse to it. Near a century ago an English judge pointed out the distinction between the cases in which legislative interference was essential and those in which it was not, in the following language: "Where cases are new in their principle, there I admit that it is necessary to have recourse to legislative interposition in order to remedy the grievance; but where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case which may arise two centuries hence as it was two centuries ago; if it was not, we ought to blot out of our law books one-fourth part of the cases that are to be found in them.” It must be conceded that this is somewhat indefinite, and that

1ASHURST, J., in Pasley v. Freeman, 3 T. R. 51, 63.


the field it allows for the exercise of judicial discretion in determining what principles are and what are not recognized in the law, and what cases fall within those that are recognized, is a very broad one. It is often exercised by looking beyond the limits of the common law and culling from the civil law the principles there discovered which may supplement and improve where the common law is discovered to be deficient. An actual adjudication will illustrate this: The owner of logs, by a sudden and very great freshet, had them carried away upon the land of a proprietor below, where they cause considerable injury as they float about. For this injury the owner of the logs is not responsible, because it happened without his fault. The law does not impose on any one the obligation to compensate for accidental injuries. But the logs are now upon the lands of another and cannot be reclaimed without a trespass. The owner of the logs must, therefore, lose them, or he must reclaim them with a further injury to the owner of the land. What is the solution of this difficulty, and how, under such circumstances shall the rights of the parties be adjusted? The civil law affords a solution. By that, if the owner of the logs claimed exemption from responsibility for the injury occasioned by them, he must abandon them to the party they had injured. If he reclaimed them he must pay for the injury. The option was with him, and [*17] the condition was perfectly reasonable. Now the common law judge finds this principle applicable to a case before him, and he also finds that it may readily be fitted in and accommodated to the common law system; that, in fact, it seems to belong there, and he therefore accepts it.' It decides the particular case and it becomes a precedent.

The view which is quite the opposite of this, and of which Mr. Bentham was a conspicuous exponent, denounces the judicial development of the law as usurpation, and demands legislative codification as the legitimate substitute. "Of the whole body of actual law," this writer says, "one pre-eminently remarkable division, derived from a correspondently remarkable source and pervading the whole mass, still remains. It is that by which it is distinguished into two branches, the arrangements of one of which are arrangements that have really been mademade by hands universally acknowledged as duly authorized and 'Sheldon v. Sherman, 42 N. Y. 484; S. C. 1 Am. Rep. 569.

competent to the making of such arrangements, viz., the hands of a legislator general, or set of legislators general, or their respective subordinates. This branch of the law may stand distinguished from that which is correspondent and opposite to it, by the name of real law, really existing law, legislator made law; under the English government it stands already distinguished by the name of statute law, as also by the uncharacteristic, undiscriminative and in so far improper appellation of written law. The arrangements supposed to be made by the other branch, in so far as they are arrangements of a general nature, applying not only to individuals assignable, but to the community at large, or to individuals not individuals assignable, may stand distinguished by the appellations of unreal, not really existing, imaginary, fictitious, spurious, judge-made law; under the English government the division actually distinguished by the unexpressive, uncharacteristic and unappropriate names of common and unwritten law.

"Of the manner in which this wretched substitute to real and genuine law is formed, take this description: In the course of a suit in which application is made of the rule of action thas [*18] *composed, the judge on each occasion pretends to find ready-made, and by competent authority, endued with the force of law (and at the same time universally known to be so in existence and so in force), a proposition of a general aspect adapted to the purpose of affording sufficient authority and warrant for the particular decision or order, which on that individual occasion he accordingly pronounces and delivers.

"Partly from the consideration of the general proposition so framed, as above, by this or that judge, or set of judges; partly from the consideration of the individual instruments or documents expressive of such individual decision or order, as above; partly from the consideration of such discourses as have been or are supposed to have been uttered, whether by the judges or the advocates on one or both sides, a class of lawyers have, under the names of general treatises, or reports of particular cases, concurred in the composition of an immense chaos, the whole of it written, and a vast portion of it printed and published, constituting an ever increasing body of that which forms the matter which passes under the denomination of unwritten law.” 1

'Const. Code, Introduction, Ch. 2; Works, Vol. IX., p. 8.

To understand the

Such were the views of Mr. Bentham. working of the opposite system of codification, which he favored, it is necessary to suppose the whole body of law reduced to writing and adopted by legislation as a complete substitute for the common or unwritten law as now understood. Such a code could embrace little more than general principles only; it could not anticipate the infinite variety of cases as they arise on their facts; but every actual controversy, as it is presented to the judges for decision, must be compared by him with those general principles; he must find that it is or is not embraced within some one of them, and must hold according to this finding that there is or is not a remedy. If his conclusions are accepted as guides in future cases, books of reports, and at length, commentaries will be found convenient and will naturally be published; if they are not accepted as guides, every judge will construe the code according to the inclination of his own mind; one judge strictly, lest he be chargeable with judge-made law; another liberally, lest he fail in some cases to give the redress which justice demands, until the statute which [*19] was intended to make all clear seems only to introduce an uncertainty as great as the minds of men are variant. As this state of things would be less endurable than the other, it would follow that the other would be preferred; the code would only become a starting point from which judicial development would necessarily begin, the courts being under the same necessity for finding in the code the governing principles of every case that before compelled them to find it in the common law, and, for the sake of instruction as well as of uniformity, being required to look to the decisions of their predecessors as some evidence of what the general declarations of the code intend, and as some guide in the future applications to new states of facts. Thus, without touching upon the point of the desirableness of a code, it is perceived that its enactment is not to dispense wholly with some of the supposed objections to the common law system, nor can it wholly preclude judge-made law.

For the judge must either find the code adequate to all controversies, or he must pause in doubtful cases until the legislature can declare the rule. But to lay down the rule retrospectively for existing controversies is not only in a very high degree objectionable and dangerous, but it is also a species of legislative

judicial action, and, particularly when it is done with reference to special cases, is liable to all the objections which have led the people when framing their governments to forbid the legislature exercising judicial power. The judge could not assume that for the government of any particular controversy the law has absolutely no rule whatever; he must hold that it either gives a remedy, or it denies one in every conceivable case.

No Wrong without a Remedy. Judicial development of the law is perceived in two forms: In the recognition of rights, and in giving a remedy for the invasion or deprivation of rights. In the first, usages and precedents will be consulted, and analogies made use of. A right cannot be recognized until the principle is found which supports it. But when the right is found, the remedy must follow, of course. The maxim of law, that wherever there is a right there is a remedy, is a mere truism; for, as Lord HOLT has said, "it is a vain thing to imagine [*20] a right *without a remedy; for want of right and want of remedy are reciprocal." 1

The idea here conveyed is, that that only is a legal right which is capable of being legally defended; and that is no legal right, the enjoyment of which the law permits any one with impunity to hinder or prevent. It is a legal paradox to say that one has a legal right to something, and yet that to deprive him of it is not a legal wrong. When the law thus declines to interfere between the claimant and his disturber, and stands, as it were, neutral between them, it is manifest that, in respect to the matter involved, no claim to legal rights can be advanced. Thus, if the domestic animals of one man invade the unfenced premises of another, and the latter demands compensation from the owner, but finds that the statute denies it to him, the denial itself is conclusive

1 Ashby. White. Ld. Raym. 938; S. C. 1 Smith Lead. Cases, 105. See Co. Lit. 197 b; Herring v. Finch, Lev. 250; 3 Bl. Com. 123; Johnstone

. Sutton, 1 T. R. 493; Lord Camden, in Entrinck v. Carrington, 19 How. State Trials, 1066; Pasley v. Freeman, 3 T. R. 63; Hobson v. Todd, 4 T. R. 71; Millar v. Taylor, Burr. 2344; Braithwaite v. Skinner, 5 M. &W. 313; Marzetti v. Williams, 1 B. & Ad. 415;

Hodsoll v. Stallebrass, 11 A. & E. 301;
Clifton v. Cooper, 6 Q. B. 468, 474;
Pickering o. James, L. R. 8 C. P. 489;
Atkinson v. Waterworks Co. L. R. 6.
Exch. 404; Jenkins v. Waldron, 11
Johns. 120; Pastorious v. Fisher, 1
Rawle, 27; Snow v. Cowles, 22 N. H.
296; Woodman v. Tufts, 9 N. H. 88;
Toothaker. Winslow, 61 Me. 123;
Lorman . Benson, 8 Mich. 18; Bass
. Emery, 74 Me. 338.

« PreviousContinue »