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Chancery

GENERAL INTRODUCTION.

"However, the following essay will do thus much good, viz. :—

"First, It will discover that it is not altogether impossible, by much attention and labour, to reduce the laws of England at least into a tolerable method of distribution.

"Secondly, It will give opportunity, both to myself and to others, as there shall occur new thoughts or opportunities, to rectify and to reform what is amiss in this, and to supply what is wanting."...

Sir MATTHEW HALE.1

THE several titles of this Abridgment will set forth, with more or less detail, according to the nature and magnitude of the subject in hand, most, if not all, of the matters commonly recognised among English-speaking lawyers as forming distinct heads in the system of the common law, and being suitable for distinct treatment. In this Introduction it is proposed to attempt a general summary view of what is contained in the whole system; not of what might be expected in an ideal system of law, but of what the laws of England actually deal with. For this purpose the scientific merits of this or that arrangement are of less importance than conformity to general expectation and convenience. And if any one "tolerable method of distribution" of the matter of English law (to use Hale's words) were already sanctioned by authority, or commended by prevailing usage, I should not hesitate to follow it. But in fact no generally received method exists. Only two works purporting to give a general introduction to our law have attained a classical reputation, namely, the Commentaries of Blackstone and of Kent; and these differ materially from one another in scope and arrangement, while neither of them covers the whole field. It seems hardly credible at this day, though the fact is easily verified, that in Blackstone's plan contract finds a place only as one of twelve modes in which title to personal chattels can be acquired. Kent is more modern, but large departments of law have either been created or have become vastly more important even since Kent wrote. Stephen's Commentaries include much that Blackstone omitted, but the arrangement is only a little better. Many other schemes have been propounded by later authors, but almost always with a view to the philosophical analysis of law in general; and few of those authors have thought it needful to abstain from dividing or even scattering abroad in many places topics which English lawyers have long been accustomed to find together. Hence it seems that, if we are to make the attempt at all, we not only may, but must, act in the best way we can on our own responsibility. 1 Preface to An Analysis of the Civil Part of the Law.

VOL. I

1

Scotland is fortunate in having a relatively compendious system, and institutional books which are modern enough to be at least fairly well arranged. Our fortune is yet to seek.

The most general category of law, without question, is Duty. Many legal duties have not any rights obviously corresponding to them, at any rate not any rights of determinate persons. But there are no rights apart from duties. Legal right is nothing else than the power to claim the performance or observance of duty. Without some kind of duty there can be no right, and nothing on which a court of justice can pass judgment. The laws of every country define and regulate the duties (that is, duties enforceable in courts of justice)1 of all persons subject to them, and consequently the corresponding rights. When we speak of regulating as well as defining, we imply the existence of rules, or bodies of rules, distinct from those which lay down duties in the abstract. A mere enumeration of duties or rights would not be a working system of law. Such a system, to begin with, presupposes the existence of regular judicial tribunals, established in definite forms, and guided by settled principles beyond and apart from the specific rules governing this or that branch of law.

Coming to matters of less generality, but still highly general, we must know what persons are capable, or fully capable, of duties and rights; for not all human beings can be treated as equally capable (children, for example), even if artificial disabilities are discouraged to the utmost. Then the legal capacity of persons may be extended, as in agency and the formation of corporations. The general consequences which flow from the very nature of an artificial person, as distinct from the rules governing the constitution and powers of trading companies or other particular kinds of corporations, have to be considered here.

We may put on the same line with these fundamental notions a few of the most general rules and maxims, for example, the rule of responsibility for the acts of servants (a rule unfortunately so entangled with exceptions and counter exceptions as to form one of the most difficult branches of an English lawyer's learning), and the maxim that everyone is assumed to know the law. Then there are principles running through all or most parts of the law, though nowhere dealt with by authority as a whole, as to the extent to which the law takes account of a man's intention, motives, or disposition, of his knowledge or ignorance of facts, and of his success or failure in using due diligence. Whether these and the like matters, or some of them, would more conveniently be placed first or last in a complete exposition, is a question admitting of plausible reasons on either side; where to draw the line between the statement, with necessary illustration, of such principles and their application in special departments, appears to be a matter of literary judgment rather than of legal doctrine.

Again, we need auxiliary rules whereby we may know how rights and duties are created, acquired, transferred, and brought to an end. In a system so elaborate as our own, it is found that rules of this kind (such as the law of executors, or of vendors and purchasers) are not inferior in either bulk or importance to the primary rules whose application is guided by them. And they are dealt with, according to their importance, either separately or as accessory to particular branches 1 Space does not allow us to consider the relation of positive law to moral rules; nor would it be useful for the purpose in hand.

of substantive law; not unfrequently, for reasons of convenience, in both ways. Practical workers want to find things grouped not only, nor chiefly, in a logical order, but more or less nearly as they occur in practice; nor will any real or supposed propriety of logical division reconcile them to being constantly sent from one book to another. Law does not consist of a number of self-contained and mutually exclusive propositions which can be arranged in a rigid framework.

A highly important auxiliary branch of law is that of construction. The rights and duties of individuals are largely dependent on the express declarations of the legislature, which are binding of their own force; of public officers and bodies authorised by the legislature to make binding rules of particular kinds; and last, by no means least, of private persons who can, within the limits set by the general law, make their own agreements and disposing acts a law for themselves, or those who have to claim through them. The question in what sense a conveyance, or a will, or a contract, is binding, occurs much oftener in practice than the question whether it is binding at all. In the case of an Act of Parliament, since its validity cannot be disputed in the High Court of Parliament itself or in any other court of justice, this is the only kind of question that can be raised. Some rules of construction are of very wide application, not counting the rules of grammar and common sense which have to be applied to the understanding of all human discourse. But special kinds of problems are presented by every distinct kind of operative document, and these are much more likely to cause real difficulty. Hence we find the construction of statutes, deeds, wills, mercantile instruments of the well-known kinds, and so forth, treated for the most part separately.

Closely connected with rules of construction, but of wider application, are the rules as to reckoning of time, distance, money, and the like. These, again, are commonly dealt with in English-speaking countries in a dispersed manner, as they occur in this and that particular branch of law. Whatever the conveniences of this usage may be, it certainly has the inconvenience of tending to produce a number of slightly different rules where one rule would have served as well.

When all these things have been accounted for, we are still only at the threshold of a working system of law. Legal duties may be ascertained, but even when they are too certain for discussion, they are not always fulfilled. There must be ways and means for the enforcement of duties and the satisfaction of just claims; in other words, law deals with remedies as well as rights. What form of redress is attainable is in many cases a far more practical question than whether any right has been violated. Many rules which appear hard at first sight are mitigated by the discretionary powers of judges to reduce punishment, and of juries to reduce their awards of damages, to slight or merely nominal amounts. On the other hand, many claims recognised as just are apt to bear but slender fruit of satisfaction to the parties entitled, by reason of the difficulties of various kinds that stand in the way of working out a complete remedy. We do not speak here of difficulties of fact altogether external to the law, such as the insolvency of a debtor. The law can compel a fair division among creditors of what there is to

1 People seem to think it scandalous whenever the law fails to do perfect justice; yet they constantly renounce the attempt in their own affairs, as when a travelling party makes a rough division of expenses rather than be at the pains of stating an

exact account.

divide; it cannot make assets where there are none, or more assets than there are.

Then remedies are of divers kinds. The consequences of wrong-doing, default, or error (for many breaches of legal duty proceed not from wilful refusal to do right, nor even from negligence, but from honest errors of judgment), are different according as it is a case for punishment, or for redress to the person injured, or peradventure for both. Where there is a private redress, again, the consequences differ according as it takes the form of restitution or performance in kind, or of compensation in money. Where the original claim is merely for the payment of money, this last difference almost vanishes.1

The law of duties, rights, and remedies, together with the needful auxiliary rules, is often called substantive law by modern writers. When we have gone thus far, we are still a long way from having considered the whole of law. For it is not enough to know what is legal justice; we must know how to get justice done by the proper Court. The rules which fix the manner and form of administering justice are called rules of Procedure, or not unfrequently, by modern systematic writers, Adjective Law. Procedure with which "practice" is sometimes synonymous "denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the Court is to administer the machinery as distinguished from its product."2 In modern law, procedure tends more and more to become uniform; in many countries, including British India, civil and criminal procedure are embodied in special codes; and here the Rules of the Supreme Court are a code of civil procedure in everything but name. Where this stage has been attained, procedure is obviously best dealt with as a whole, and apart from the substantive law. But where many special forms of procedure exist, or formerly existed, in different Courts and different kinds of proceedings, they naturally have or had to be considered as attached to the particular subject-matter; and in an earlier stage what now seems to us the natural order was reversed, and the matter was rather annexed to the form than the form to the matter. "So great is the ascendency of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms."3 This may be seen in any of our old books on pleading and practice, and in some that are not very old.

The law of evidence is, both in logic and in history, a branch of the law of procedure; but, for historical reasons, of which no statement can be attempted here, it has taken an independent position in the common law, and, as treated by text-writers and indexers, has made large annexations not only from the rules of procedure and pleading, but from 1 Not quite the distinction between a money debt itself and damages for nonpayment of the debt was significant in the old forms of action.

2 Lush, L.J., in Poyser v. Minors, 1881, 7 Q. B. D. 333. "Practice" is usually confined to the minor details within a given form of procedure. How a jury shall be made up is matter of practice; whether there shall be a jury at all is hardly so in the common speech of lawyers.

3 Maine, Early Law and Custom, p. 389.

* See the late Professor Thayer's Preliminary Treatise on Evidence at the Common Law, published in 1898.