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the Wars of the Roses and the Civil War left the average Englishman still unaware of that abstract ‘sovereign’ which the speculations of Bodin and Montesquieu, and the despair caused by social anarchy, were generating on the Continent. In spite of Hobbes and his Leviathan, the average Englishman remained cold to the notion of an abstract, all-powerful, passionless Commonwealth, and preferred to speak and think of a King who was, no doubt, by far the most powerful person in the land, with a vast machinery of Parliament and Courts of Justice acting in his name, whose help it was especially valuable to have on one's side, but still, on the whole, a perfectly concrete and intelligible person, with human weaknesses and limitations. It may have been want of imagination, incapacity for idealism, any other 'innate' defect you like in the Englishman's character; but it seems at least to have left him a singularly practical and self-reliant person, who, in that eighteenth century when the Continent was absorbed in dynastic and territorial wars, was quietly gathering to himself a world-wide empire, which the mismanagement of a handful of 'State' officials at Whitehall did its best, happily with only partial success, to destroy.
And, of course, it is idle to suppose that a people with the record of the English in the eighteenth century was without ideals. The world had, on the whole, gone very well with the Englishman; and this fact, added, doubtless, to his insular position, had generated in him a bold spirit of self-confidence which not only led him to compare himself favourably with foreigners, but caused him to resent fiercely any interference with his freedom of action. He had a deep respect for law, but from a strictly individual standpoint, as a shield which would at once protect him against the encroachments of others upon his freedom, whether those others were government officials or private persons, and yet leave him at liberty to carry on his own pursuits, regardless, to a large extent, of the welfare of others, which is, of course, only another aspect of the same desire. Only when he had himself voluntarily undertaken liabilities, was he willing to recognize them; in that case his common sense taught him that, without mutuality, he could expect no similar recognition from others. Hence the completeness of the English Law of Contract; hence also the limitations of the English Law of Torts and English Family law. Hence also the unique freedom of testation in English Law.
But there can be little doubt that another and very strong reason for the Englishman's respect for his law is the fact that he regards it, and very rightly, as his own production. The writer trusts that he has given due consideration to the arguments of those who maintain the authoritarian view of law, as a rule of conduct imposed from above rather than worked out from below; and particularly he has not failed to study one of the latest and ablest presentations of the authoritarian theory in the work of the late Royall Professor.10 But still, he is prepared to maintain that, so far as English Civil Law is concerned, the facts are against the authoritarian view, with small and inconsiderable exceptions. Not to labour again the explanation as to the function of judicial precedents given in the preceding article," the writer may be permitted to state that the chief example relied upon by Professor Gray 12 in support of his contention that the function of the judges is not (as in the orthodox view) declaratory, but creative, seems to him a little disingenuous. In form, no doubt, the court in Pells v. Brown merely decided that that peculiar kind of future limitation known as an executory interest could not be destroyed by a common recovery, when it was intended to work in defeasance of a fee simple. And equally, no doubt, it is unlikely that testators who were not lawyers had ever considered the question in that form. But there is evidence that, long before Pells v. Brown was decided, executory devises of the kind occurring in that case had been in familiar use; and though, immediately after the passing of the Statute of Uses 13 the Common Law Courts (which had not before had an opportunity of pronouncing upon them) had expressed an opinion adverse to their validity, that opinion had, somehow, been clearly overcome. The question in Pells v. Brown was then, substantially, whether by allowing the fiction of a common recovery to be extended to a purpose for which it was not introduced,14 a well-established practice should be, in effect, invalidated. Professor Gray appears also to have considered
10 NATURE AND SOURCES OF THE LAW. By John Chipman Gray (Columbia University Lectures), 1909.
HARV. L. Rev. 17-19. 13 Op. cit., pp. 223–26. 13 Prior of Smithfield's Case, Dyer, 33 (1536).
14 In fact the introduction of the common recovery as a bar of an estate tail seems itself to show even the impotence of an Act of Parliament in the face of well-established custom.
with less attention than it deserves the important fact that the English Parliament, by virtue of its representative character, succeeded rapidly, even in the earliest days of its existence, in establishing, in the name of the 'good customs of the realm,' a decided check on judicial activity, though that activity had been in familiar exercise for more than a century.
But if the writer is unable to accept Professor Gray's view of the origin of law, at any rate of English law, he is the more anxious to express his indebtedness to the late Royall Professor for the admirable explanation of the nature of the State, which, whatever be the origin of law, always plays, in civilized communities, a profoundly important part in its administration. The expression “State machinery' is familiar enough; but few writers, at least few juristic writers, have, so clearly and briefly as the late Royall Professor,15 brought out the essentially 'inhuman' character of that organization. Man has an ideal or mystical side to his nature, which causes him, like Israel of old, to worship the work of his own hands; and the tendency is not confined to physical productions - it would be far less dangerous if it were. Thus the notion of the Sovereign State,' like the irresistible powers of steam and electricity, may become a profound source of danger to the community which has allowed it to be seized by unscrupulous hands; and so the Austinian view of the State, as the source of all law, is not only contrary to obvious historical facts, but dangerous to the last degree. We know, of course, that the State is the source of a great deal of law, or, to speak more exactly, that a great deal of law is the product of those individuals who have, for the time being, got hold of the State machinery. But some of us are by no means convinced of the superiority of that law to the law made by the community itself, and count it a danger to the community whose theory of the State places no limits upon the creation of State law.
It is, therefore, as the writer regards it, no unmixed evil that English law is so chary of invoking the conception of the State, and displays such a limited capacity for feigning, or, if the expression be preferred, recognizing, personality. Doubtless there are incon
16 Op. cit., Ch. III. The influence of traditional language on thought seems, however, to be illustrated even in the argument of Professor Gray, who, after describing the State as 'merely a device,' speaks, almost in the same breath, of 'the men and women who compose it' (p. 67).
veniences attending this poverty of imagination, as was made evident in the difficulties raised in the prosecution which led to the passing of the Official Secrets Act, 1889, a statute that contains one of the earliest instances in English law of the use of the word 'State' to signify the totality of the nation. 16 Even here, as the Act contains no definition of the term,17 we are not compelled to conclude that Parliament gave its sanction to the somewhat anthropomorphic tendencies of modern writers, who insist 18 on seeing in the ‘State' a juristic personality which is all the more dangerous that, in theory at least, the British Empire is a ‘unitary State,' in which a monstrous omnipotence, known as “sovereignty,' not only resides, but resides under the control of a comparatively limited number of individuals. Such a theory, though it undoubtedly has its uses when the community is fighting for its life against an external attack, is full of danger in normal times, when it is apt to be exploited by unscrupulous individuals. Better an avowedly catastrophic remedy, like the Roman Dictator.
It is a less disputable and more purely juristic objection to English law, that it does in some cases clumsily what it might do exactly, and that it scandalously neglects minor reforms which it might easily accomplish but for pure inertia. A striking example of the former defect is the procedure technically known as the 'action of seduction. It is possible to argue, that the difficulty of deciding from which side the temptation proceeded in any given case is an insuperable objection to allowing the action at all; though, if the damages were strictly limited to the pecuniary loss suffered by the woman, that argument would appear to be difficult to maintain. But to allow, as English law does, the action to be brought, yet to make its success depend upon wholly irrelevant circumstances — worse still, to place the assumed victim of the wrong at the mercy of the nominal plaintiff so far as the fruits of victory are concerned is surely an excess of clumsiness of which any English lawyer must feel ashamed. The anomalies of the action are duly set out in the
16 S. 1 (1) (6) 'in the interest of the State.' Of course, the term is familiar in other senses, e. 8., ‘His Majesty's Principal Secretaries of State,' and even (though less common) as a community occupying a definite area, e. 8., 'State of New South Wales.'
17 Neither does the amending Act of 1911.
18 E. 8., in Professor Jethro Brown's lucid excursus (THE AUSTINIAN THEORY OF LAW, pp. 254-70).
Digest; but, to state them in compact form, it may be said that an employer whose female servant has been heartlessly betrayed has it in his own unfettered power to decide whether or not the seducer shall be compelled to pay damages, and, having decided in the affirmative, to pocket the damages without allowing the woman to receive a farthing; further, that, where the employer has himself been the seducer, the action will not lie at all, unless it can be proved (or at least inferred) that the employment was merely a blind; and, finally, that the death of the employer, after the seduction but before the pregnancy is declared, is equally fatal to the action. The blame for these grotesque absurdities does not, at least primarily, lie upon the shoulders of the judiciary, who have made the best of a clumsy machinery; but it is difficult to decide whether mere callousness, or hypocrisy, or pure ignorance, is most responsible for their continuance. A similar criticism applies, though to a less degree, to the uncertainty which still surrounds the very practical question, whether a civil action can be brought to recover damages for a tort which is also a felony, before the defendant has been tried for the felony.20 This uncertainty was felt as a grievance two centuries and a half ago; and the ‘Barebones' Parliament of 1653 framed a proposal to abolish it. But it has continued serenely ever since.
It has been a charge often levied against English law that, while it resorts freely to the coarse argument of physical force, and the somewhat base argument of pecuniary mulct, it makes little or no attempt to employ the more genial sanction of reward. But this criticism appears to be ill founded. It is true that the more obvious and palpable forms of reward are somewhat sparingly used, and that, with the steady discouragement meted out in recent generations to “penal actions, there might even appear to be a reaction against this method. But it can hardly be overlooked that one highly important branch of English law, viz., the Law of Property, now operates very powerfully to stimulate industry by means of rewards. It may be, as was suggested above, that the original object of this branch of the law was to discourage violence; and the writer is certainly not prepared to maintain that the notion of property cannot establish itself without legal sanction. No one who has
19 Bk. II, Pt. III, Sect. V, Tit. I.
20 DIGEST, $ 741. A slight advance toward clearing up the doubt has been made by the recent decision in Smith v. Selwyn, (1914) 3 K. B. 98.