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Origin of municipal law.
tem of municipal jurisprudence, expletive justice must be understood to mean that which may be claimed of strict legal right; and attributive justice that which the tribunal can either not notice at all, or only in virtue of an equitable jurisdiction modifying and restraining the rigour of the law.
§ 37. So soon as societies were formed and the relations of sovereignty and subjection established, the imperfections of our nature indicated the necessity for municipal law. To administer perfect attributive justice, in all questions to which the innumerable combinations of human action give rise, is the high prerogative of Omniscience and Impeccability. For to this end are required not only an unclouded view of the facts as they have occurred, and a decision, alike unerring and uncorrupted, on the claims of the contending parties; but a complete foresight of all the consequences, both direct and collateral, and down to their remotest ramifications, which will follow from that decision. The hopelessness of ever accomplishing this became early visible to the reflecting portion of mankind; and the observation of nature (g) having taught them that great ends are best attained by the steady operation of fixed general laws, they conceived the notion of framing general rules for the government of society-rules based on the principle of securing the largest amount of truth and happiness in the largest number of cases, however their undeviating action might violate attributive justice or work injury in particular instances (h). The rules established by authosages in the Mosaic law where it is forbidden to 66 countenance a poor man in his cause," Exod. xxiii. 3, or in judgment to respect the person of the poor, or honour the person of the mighty, Lev. xix. 15, are also cited in illustration of this principle.
(g) "Le ley imitate nature." Per Doddridge, J., in Sheffeild v. Ratcliffe, 2 Rol. R. 502. Sicut Natura non facit saltum, ita nec Lex; Co. Litt. 238 b.
(h) One of the best, certainly the finest, description of municipal law to be found in any lan
rity for this purpose in each country constitute its municipal law.
guage, is that of Demosthenes : quoted in Christian's edition of Blackstone's Comm. vol. i. p. 44, note. The following, taken from the works of Isidore, Bishop of Seville, Etymol. lib. ii. c. 10, is also worthy of notice :-" Erit autem lex, honesta, justa, possibilis, secundùm naturam, secundùm consuetudinem patriæ, loco temporique conveniens, necessaria, utilis, manifesta quoque ne aliquid per obscuritatem in captionem contineat, nullo privato commodo, sed pro communi civium utilitate conscripta." Our common law authorities are strong to the same effect." Le ley est reasonable que provide pur le multitude, coment que ascun especial person ont perd' per ceo. Vix ulla lex fieri potest quæ omnibus commoda sit, sed si majori parti pspiciat, utilis est." - Plowd. 369. "There hardly exists," says Lord Ellenborough, in R. v. The Inhabitants of Harringworth, 4 M. & Sel. 350, "a general rule, out of which does not grow, or may be stated to grow, some possible inconvenience from a strict observance of it. Nevertheless, the convenience of having certain fixed rules, which is far above any other consideration, has induced courts of justice to adopt them, without canvassing every particular inconvenience which ingenuity may suggest as likely to be derived from their application." In P. 2 H. IV. 18 B.
pl. 6 (cited in the note to Burgess v. Gray, 1 C. B. 586), the counsel for a defendant in the C. P. argued thus:-" This defendant is undone and impoverished for ever, if this action be maintained against him, for then twenty other such suits will be brought against him upon the like matter." Whereupon Thirning, C. J., interposed-" What is that to us? It is better that he should be quite undone than that the law should be changed for him." And, lastly, we would refer to the case of the King's Prohibitions, in 12 Co. 63; M. 5 Jac. I. The archbishop had informed the king that he had a personal jurisdiction in ecclesiastical matters, which Sir Edward Coke, answering for the rest of the judges, denied; saying, that the king in his own person cannot adjudge any case, but that it ought to be determined and adjudged in some court of justice, according to the law and custom of England, &c. &c." "Then," continues the report, p. 65, "the king said, that he thought the law was founded upon reason, and that he and others had reason, as well as the judges: to which it was answered by me, that true it was, that God had endowed his majesty with excellent science, and great endowments of nature; but his majesty was not learned in the laws of his realm of England, and causes which concern
§ 38. The reasons for applying these principles of legislation to evidence received in courts of justice, although less obvious, are equally satisfactory with those which originated the principles themselves. In the first place then we would observe, that the relations of cause and effect are manifestly innumerable; especially when those cases are taken into the account where the effect does not follow immediately from its ultimate cause, and is only the mediate consequence of some subalternate one. Now "Optima est lex, quæ minimum relinquit arbitrio judicis (i)" but the power of a tribunal, however nicely defined by rules of substantive law, would soon be found absolute in reality if no restraint were imposed on its discretion in declaring facts proved or disproved; and we accordingly find that the laws of every well-governed state have established rules regulating the quality, and occasionally the quantity, of the evidence necessary to form the basis of judicial decision. And here the analogy to the other branches of municipal law seems complete. The exclusion of evidence by virtue of a general rule may in particular instances exclude the truth, and so work injustice; but the mischief is immeasurably compensated by the stability which the general operation of the rule confers on the rights of men, and the feeling of security generated in their minds by the conviction that they can be divested of them only by the authority of law, and not at the pleasure of a tribunal. The two principal checks which the law of England imposes on its tribunals in this respect are, first, the prohibiting judges and jurymen from deciding facts on their own personal knowledge, and placing them as it were in a state of legal
the life, or inheritance, or goods,
experience, before that a man can attain to the cognizance of it; &c."
(i) Bac. de Augm. Scient. lib. 8, c. 3, tit. 1, Aphorism 46.
ignorance as to almost every thing except what is established by evidence before them (k). Its maxim is, "Non refert quid notum sit judici, si notum non sit in formâ judicii (1):” and the principles, " De non apparentibus et non existentibus eadem est ratio (m)," "Idem est non esse et non apparere (n)," "Incerta pro nullis habentur (o)," &c., so false in philosophy, become perfectly true in our jurisprudence. The second is, the exacting as a condition precedent even to the reception of evidence, that there be an open and visible connexion between the principal and evidentiary facts,-" Nemo tenetur divinare (p)”—“ Probationes debent esse evidentes, (id est) perspicuæ et faciles intelligi (q)." This indeed is only following out a great principle which runs through our whole law-" In jure non remota causa, sed proxima spectatur (r)." One or two instances will illustrate. If things are to be traced up to their ultimate sources, the remote though chief cause of the appearance of a criminal at the bar might be found in his parents, his education, the example of others, the law, or even the very judge by whom he is tried; still the tribunal cannot enter upon such matters, and can only look at the proximate cause-his own act. So, the nonpayment of a debt has for its proximate cause the debtor's neglect, but the ultimate cause may be the default of others whose duty,
(k) 7 H. IV. 41, pl. 5; Plowd. 83; 1 Leon. 161. See the authorities in the following notes; and infra, Part 1, ch. 1.
(l) 3 Bulst. 115. "Nous ne poiomous pas aler a jugement sur notorie chose, eins selonque ce que le proces est devant nous mesmes. Per Herle, C. J. H. 7 Edw. III. 4, A. pl. 7.
(m) 4 Co. 47 a; 12 Id. 53, 134; 3 Bulst. 110; Hob. 295; 1
T. R. 404; 7 M. & W. 437.
(n) Jenk. Cent. 5, Cas. 36. See also 2 Inst. 479.
(0) Davis, 33; Grounds and Rudiments of Law and Equity, 143, A. D. 1751; Broom's Max. xxv. 2nd edit.
(p) 4 Co. 28 a, and 66b; Litt. R. 98.
(2) Co. Litt. 283 a.
(r) Bac. Max. of the Law, Reg. 1. See infra, Part 1, ch. 1.
Difference between public and domestic jurisdiction.
either legally or morally, it was to have supplied him with money.
§ 39. And here must be noticed a false principle which is to be found in some systems of jurisprudence, and runs through Bentham's work on judicial evidence-viz. the assumption that there is a perfect, or even close, analogy between justice administered by a parent in his family and justice administered by municipal tribunals between man and man. "Before states existed (s)," says the eminent writer just quoted, " at least in any of the forms now in existence in civilized nations, families existed. Justice is not less necessary to the existence of families than of states. The mode in which, in those domestic tribunals, created by nature at the instance of necessity, justice was administered, and, for that purpose, facts were inquired into, may for distinction's sake be termed the natural or domestic mode of judicature. It is among the characteristics of the natural or domestic mode of judicature, to be exercised (if not absolutely, at least comparatively speaking) without forms: without rules. A man judges, as Monsieur Jourdan talked prose, unconscious of any science displayed, of any art exercised. One of your two sons leaves his task undone, and tears his brother's clothes: both brothers claim the same plaything: two of your servants dispute to whose place it belongs to do a given piece of work. You animadvert upon these delinquencies, you settle these disputes it scarce occurs to you that the study in which you have been sitting to hear this, is a tribunal, a court; your elbow chair a bench; yourself a judge. Yet you could no more perform these several operations without performing the task of judicature, without exercising the functions of a judge, without hearing evidence, without making inquiry, than if the subject of inquiry had been the Hastings cause, the Douglas cause, or the Literary (s) 4 Benth. Jud. Ev. 7, 8.