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Act, and the Partnership Act, has shown, the rich materials of English Law may with advantage be moulded into accessible and logical form. And, though the writer believes that he is speaking for his colleagues as well as for himself in disclaiming any comparison with those triumphs of the draftsman's art, he ventures to think that the Digest of English Civil Law has shown that the process may be extended a good deal further than it has at present gone.
Another of the obvious lessons learned (or confirmed) from the thirteen years of hard labour which have gone to the making of the Digest, is a realization of the extraordinary inequalities which mark the different parts of the civil law of England. The English Law of Contract, for example, is scientific and complete; it assumed scientific form at a happy time, just when the genius of Lord Mansfield had incorporated the Law Merchant (surely a priceless adoption) into English Law. Had the structure been earlier framed, it might well have been cramped and inelastic; the archaic special contracts' which survive alongside the innominate contracts of modern business, and stand in such puzzling relationship to the general theory of contract, are warnings of what might have happened. But they have had their uses in building up a scientific theory, though as models they'leave to be desired.' A friendly reviewer of the second volume of the Digest expended a certain amount of genial ‘chaff' upon a sentence in the Preface to that volume, which spoke of Gaming Contracts as 'social relationships regulated by law'; but the writer of the Preface is wholly unrepentant, for he believes that the primitive and deep-seated gambling instinct of the English race has played no small part in the evolution of the peculiarly English institution of the simple contract, and that the hundreds of lost and forgotten dice recovered from the ancient floor of the Middle Temple Hall may have had a closer connection with the theory of contract than has hitherto been guessed. Still, he would not deny, that the somewhat arbitrary rules which govern the Special Contracts dealt with in the third volume of the Digest, were well superseded by the simpler rules which now apply to innominate contracts.
The English Law of Property, though different in many ways from the Law of Contract, resembles it in fullness and minuteness.
• The true relationship of these two parts of the Law of Contract has been suggested in the Preface to Vol. III of the Digest.
In fact, so minute is it, that it not only provides two sets of rules, the one dealing with land, the other with movables; 4 but in one corner of its field of operations it actually provides three alternative sets of rules for a single process, varying with the hands to which that process is entrusted. Thus, if an insolvent estate is administered by executors out of Court (surely a rash proceeding!), the old rules of equity, as they stood at the passing of the Judicature Acts, govern the case. If the estate is being administered by the Chancery Division, these rules are modified by such (but only such) of the bankruptcy rules as are incorporated into that administration by section 10 of the Judicature Act, 1875. If the proceedings are in the bankruptcy jurisdiction, all the bankruptcy rules (with slight modifications) apply. Surely this is excess of zeal.
But if in some directions the English Law of Property is minute and detailed, in others it is extraordinarily incomplete. Thus, while it is possible to state with reasonable precision most of the rules of Real Property Law, yet, for want of an authoritative background, these rules must inevitably appear, to a student unacquainted with the history and the atmosphere of the system, arbitrary to the last degree. The author of Book III of the Digest has endeavoured to state, in the first Title of that Book, the fundamental principles upon which these rules are based; but, like Mr. William Lloyd Garrison's coloured interviewer, and for similar reasons, he will not attempt to disguise from his readers the fact that he has been obliged to supplement his text with a strictly unpermissible buttress of notes, and that, even with such assistance, he has laid himself open to the criticism of a learned friend, who observed that the Book was sadly oblivious of the 'mystery of seisin.'
As for property in movables, the English system has frankly given up in despair any attempt to formulate scientific rules on that subject, and has, substantially speaking, contented itself with dealing only with possession. Analytical jurists, who are seldom less convincing than when they venture to draw conclusions from that history which they ostentatiously profess to despise, have, it
• The narrowness of the territory common to both subjects may be realized from a glance at the scanty proportions of Bk. III, Sect. XV, of the DIGEST. But a certain allowance should be made for testamentary disposition.
is believed, claimed this fact as a proof of the very debatable proposition, that property is the outcome of possession ripened by length of time and legal protection. To the writer, this doctrine appears to be, not only anarchical, and even immoral, but opposed to the well-known facts of English legal history. Surely the Writ of Right, and even the Grand Assize, are older than the Possessory Assizes and the Writ of Trespass; and, though the common law doctrine of larceny was based upon trespass, there is no evidence that the older English law of theft grew out of a law which protected seisin or possession. The matter is, perhaps, strictly irrelevant; but the truth seems to be, that, long ere the distinction between property and possession is recognized, primitive legal systems recognize some kinds of association between persons and material objects as a 'right' which is, at first, no doubt, inconceivable as existing apart from physical control, but which is at least as much proprietary as possessory in its character. And when the time comes for the specialization of ideas to be effected, it is, apparently, possession, rather than property, which is the conscious production of juristic speculation. At least, such appears to be the teaching of English Law; and it is supported by the facts of other systems.
And if we ask why, for example, the common law devoted itself to the protection of the possession, rather than the ownership, of movables, the answer given by English legal history appears to be, that the invention of the great Writ of Trespass, introduced in the interests of public order, and the increasing sharpness of the noticn of possession which resulted from it, were found so convenient, with a little adaptation, for deciding indirectly questions of ownership of chattels, that the need of a true proprietary process did not appear urgent. A similar result led to the practical disappearance from land law of the Writ of Right in the century following the invention of the Writ of Trespass; but it may be shrewdly suspected that, so long as the local courts continued to be active tribunals, a good deal was heard in them of questions of title.
If we turn now from the Law of Contract and the Law of Property to Family Law and the Law of Torts, we shall be struck at once by the comparative poverty of these two important branches of English Law. It is assuredly no fault of Professor Geldart that Book IV of the Digest is so scanty, and that much even of its
scanty contents (e. 8., the Law of Marriage and Divorce) would appear to fall almost as fitly under Public as Private Law. The Law of Guardianship, for example, which bulks so largely in Continental systems, is, in English Law, a mere fragment. This fact is commonly explained, in the writings of English jurists, by a reference to the completeness and efficiency of the peculiarly English Law of Trusts. But this explanation does not carry us very far. Why does English Law leave to the Law of Trusts the regulation of those important matters which, in most systems of law, are governed by the Law of Guardianship? Is it not significant that, while the Law of Guardianship is what may fairly be called a compulsory system, in which the conduct of the guardian is directed and controlled by the authority of the State, the Law of Trusts is a voluntary system, in which the duties of the trustee and the rights of the beneficiaries are prescribed (sometimes very minutely) by the founder of the trust? It is, no doubt, true, that English Law, in that special department of it known as 'Equity,' has laid down an elaborate system of rules for enforcing the administration of trusts; but these are, substantially in every case, “subject to the provisions of the settlement.'
Again, it was actually suggested by one of the authors of the Digest, that a complete statement of English Family Law would include the Law of Intestate Succession; and there is, obviously, much to be said for this view. But, apart from the inconvenience of abandoning traditional arrangements, it was felt by the editor that the adoption of this suggestion would really tend to obscure one of the most striking peculiarities of English Law, viz., the unfettered testamentary power wielded by the English parent. Whatever may be the case in systems which have preserved a law of legitim, which prevents a parent disinheriting his family without due cause, in English Law intestate succession is, both in theory and practice, at the present day, merely a provision for the careless or unfortunate person who dies without leaving a valid will. It is only in the last resort, that the provisions of the Inheritance Act and the Statutes of Distribution are prayed in aid. The fate of Faulkes de Breanté has been laid to heart by the English nation."
6 DIGEST, Bk. IV, Sect. II, Tit. III and IV (42 $8).
Ibid., Bk. III, Sect. XVII (70 $8).
Once again, we may note, that English Family Law is not only very scanty, but, comparatively speaking, very modern. Apart from the well-known provision of the Statute of Merton (1235) on the subject of post-legitimation, and that of the Statute of Marlborough (1267) on waste by guardians,' there is practically no statute law of any importance in this branch until we come to the Reformation, with its quarrels over Church jurisdiction, and the establishment of the Poor Law system under Elizabeth.10 Even these important changes were, as has been before hinted, effected far more in the interests of the community as a whole than of the members of the family, or even of the family as a unit. Not until the definite putting away of feudalism at the Restoration, and the subsequent laborious reconstruction of society on a contractual basis, do we begin to get a real development of Family Law; and by that time the Trust is too firmly fixed an institution to give way before general rules. Indeed, the subsequent sweeping away of the few restrictions on testamentary power which still survived from the Middle Ages seemed but to emphasize the emancipation of the family from the bonds of law. 11
What is the explanation of this peculiarity of English Law? It is customary to attribute it to the legendary "individualism' of the English character; and it may be that, when we come to dig a little deeper into the foundations of English Law, we shall have to allow some ultimate weight to this alleged psychological element. But is there not a more definite historical explanation, which will at least suggest proximate causes?
We know too little at present of pre-Norman English Law to dogmatize about social conditions before the Conquest; but we shall probably not be far wrong in assuming that the typical patriarchal household, with its apparent despotism strongly fettered by local custom, prevailed largely amongst English folk of that time. It seems to be very doubtful whether any but privileged persons could make wills; and what little we know of the Anglo
20 HEN. III, cap. 9.
52 Hen. III, cap. 17. 10 The writer does not forget the provisions of the Statute of Westminster II (1285) on the subject of ‘ravishment of ward.' But these, though technically unrepealed, have long been obsolete.
11. See the writer's Short HISTORY OF English Law (Little, Brown & Co.), pp. 273-74.