Frederick Pollock.

A first book of jurisprudence for students of the common law online

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From the Library of
Professor David Mellinkoff



Who donated his collection

TO THE

UCLA School of Law

Hugh & Hazel Darling

Law Library

August 1 999



"Cleansed of words without reason, much
of the language of the law need not be

PECULIAR AT ALL. AND BETTER FOR IT."

The Language of the Law
BY David Mellinkoff




/



V



FIEST BOOK OF JURISPRUDENCE



MACMILLAN AND CO., Limited

LONDON • BOMBAY • CALCUTTA • MADEAS
MELBOURNE

THK MACMILLAN COMPANY

NEW YORK • BOSTON • CHICAGO
DALLAS • SAN FRANCISCO

THE MACMILLAN CO. OF CANADA, Ltd.

TORONTO



K
A FIRST BOOK Pt,



OF



A3H



JURISPRUDENCE



FOR STUDENTS OF THE COMMON LAW



Right Hon. Sir FREDERICK POLLOCK, Bart.

BARIII.STKE-AT-LAW

D.C.L., HON. LL.D. EDIN., DUBLIN, HARVAUD AND CHRISTIANIA

LATK CORPUS CHRISTI PROFESSOR OF JURISPRUDENCE IN THE USIVERSITV OK OXFORD

PAST FELLOW OF TRINITY COLLEOE, CAMBRIDGE

CORRESPONDENT OF THE INSTITUTE OF FRANCE

A.SSOCIATE MEMBER OF THE ROYAL ACADEMY OF BELGIUM



FOURTH EDITION



MACMILLAN AND CO., LIMITED

ST. MARTIN'S STREET, LONDON

1918



COPYRIGHT

First Edition, Mly 1896. Reprinted, November 1S96
Second Edition, 1904
Third Edition, 1911
FoMrt/i Edition, 1918



PREFACE

This book is not intended to lay out a general
system of tlie philosophy of law, nor to give a
classified view of the whole contents of any legal
system, and it does not profess to compete with the
many works which have aimed at one or both of
those objects. It is addressed to readers who have
laid the foundation of a liberal education and are
beginning the special study of law. Such a reader
finds, in the new literature he has to master, a
number of leading conceptions and distinctions
which are assumed to be familiar, and are so to
lawyers, but which, for that very reason, are not
often expressly stated, still less often discussed,
and hardly ever explained. He has not only to
discover for himself, often with nnich bewilder-
ment, the actual content of legal terms, but to
realise the legal point of view and the legal habit
of mind. Law seems to the layman, at first sight,
to make much of trifles and to disregard greater



VI FIRST BOOK OF JURISPRUDENCE

matters. Again, some speculative problems are
capable of giving much trouble in the actual
practice and administration of the law, while others
are seldom or never heard of in court ; and it is
hard for the layman or the novice to distinguish
the two kinds. In this as in other sciences every
one must make his way through the stage of
confusion and illusion in his own fashion. But,
though it is his own work which no one else can
do for him, it is possible for those who have passed
beyond that adventure to be ready with a helping
hand and a warning voice.

In the first part of this book I have tried to set
forth, in language intelligible to scholars who are
not yet lawyers, so much of the general ideas
underlying legal discussions as appeared needful
for the removal of the most pressing difficulties.
Not much will be found about constitutional or
criminal law ; not because I underrate their actual
importance, but because they do not, as a rule, so
much require this kind of explanation, and their
exceptional problems, when they do occur, are too
hard for novices, and are best left for a riper stage.
Quotation and criticism of other modern writers'
opinions have been, with rare exceptions, purposely
avoided as useless and distracting to those for



PREFACE vil

whom I mainly write. Any detailed acknowledg-
ment of my obligations will therefore not be
expected. Among the authors of past generations
I owe most, so far as I can judge, to Savigny ;
among recent and living ones to Maine, Jhering,
and my friend Mr. Justice Holmes of the Supreme
Court of the United States. Learned readers and
advanced students will easily see that the philo-
sophy of the English or " analytical " school is
not mine ; nevertheless I have learned much from
Hobbes, and hold acquaintance with his work at
first hand indispensable for all English-speaking
men who give any serious consideration to the
theoretical part of either politics or law. It
may be that I love Hobbes a little too well to
be perfectly just to his successors, who, to my
thinking, have often got more praise than they
deserved for repeating Hobbes's ideas in clumsier
and really less, exact words. But, as I am not
undertaking a critical estimate, this is but a matter
of personal taste, and of no importance to the
reader.

While I have endeavoured to be as clear as
possible, I have not attempted to make funda-
mental and difficult problems look easy. The
cheap facility that comes of gliding over hard



viii FIRST BOOK OF JURISPRUDENCE

places can only be found a dear bargain in the
end. I do not promise the reader that he will find
this book easy reading in every part. I do make
bold to promise him that, if he reads it with
attention, he will find several other books less
difficult and more profitable. Sometimes I have
allowed myself to devote a few sentences or even
a paragraph to readers who have to some extent
mastered the language and methods of philosophy.
This, I hope, will not be unwelcome to such as have
taken honour degrees in classics, especially in the
Oxford School of Literac Humaniores.

The second part of the book aims at an end not
really dissimilar in kind, but it is more practical
and more exclusively addressed to students of the
Common Law, the system according to which
justice is administered in almost every part of
the English-speaking world except Scotland and
Louisiana. Like the Eoman law, that system is
embodied in a special and technical literature
governed by its own authoritative conventions,
accessible only through its own apparatus of
reference, and available for any practical purpose
only on condition of understanding its peculiar
methods. The use of law - books and the
appreciation of legal authorities can be fully



PREFACE IX

learned only by assiduous practice ; but here,
again, it has long seemed to me that something
can be done to lighten the first steps of the
beginner, and this is what 1 have tried to do. No
practical art can really be taught ; one man can
only help another to learn ; but it is common
experience that such help will often save a great
deal of trouble. Certainly no man ever learned
to shoot by being lectured on the construction of
a rifle, and yet such lectures are a regular part
of musketry instruction. So far as I know, the
experiment has never been made, in the case in
hand, for the same purpose or in any very similar
manner, though different parts of the subject have
been touched upon by several writers, both English
and American, on legal studies and literature, and
notably by Kent. Possibly a connected account of
the sources and authorities of English law, as they
have come to be in modern practice, may be of
interest to some of the Continental scholars, especi-
ally Frenchmen, who of late years have brought
admirable industry and intelligence to bear on our
methods of conducting both political and judicial
affairs. But I have written, in the first place, for
oui own learners of the Common Law on both sides
of the ocean, and my work stands to be judged by



X FIRST BOOK OF JURISPRUDENCE

tlieir proof in using it. If they find it useful 1 shall
be well content, even more content than if I should
perchance convince a mature philosopher or econo-
mist that the science of law has some right to
exist.

It will be seen that tlie two parts of the book
are to some extent independent of one another ;
and any reader who so chooses can, witliout much
inconvenience, disregard the logical order of gener-
ality and take the second part first. However that
may be, the combination of the two in one volume,
and the preference of English examples and illustra-
tions in the first part, are intended as a protest
against the habit of regarding "jurisprudence" as
something associated with a little knowledge of the
laws of every country but one's own.

In the second and third editions I have amplified
a few passages where further explanation seemed
desirable. The latter part of the book, being more
versed in current decisions and literature than the
former, has called for several new references and-
otlier amendments due to lapse of time. Both
in making additions and in supplying omissions I
have tried to avoid the temptation of crossing the
boundary between illustration of principles and
exposition of technical rules.



PREFACE XI

In the present reprint (1918) the process of minor
amendment has been continued down to date. There
are no substantive alterations, but some observations
on rules of pleading and evidence have been added
at page 79.

F. P.



CONTENTS
PART I

SOME GENERAL LEGAL NOTIONS



CHAPTER I

The Nature and Meaning of Law



Difficulties of Definition

Rules of Civic Conduct .

Legal Profession not necessary

Custom ....

Moral and Natural Law

Law of Nations

Extended Senses of "Law"

Sanctions of Law .

Law as "Will of the State"

Definition ....



3
7
8

10
12
13
17
22
27
29



CHArXER II

Justice according to Laav

Conditions necessary for Existence of Law

Justice

Order as Fundamental Principle

xiii



30
32
34



XIV



FIRST BOOK OF JURISPRUDENCE



Singular Sovereign Acts

Normal Marks of Law :— Generality
Equality
Certainty

Scientific Nature of Law

Relation of Law to Morals .

Legal Responsibility without Moral Fault

Development of Law necessarily Artificial



PAGE

35
37
38
41
46
48
52
54



CHAPTER III

The Subject-Matter of Law



Duties of Subjects ....
Duty, Positive and Negative
No Duty without Right.
Can the State have Duties ?

Wro.ng

Auxiliary Rules of Law
Rules of Evidence and Proceduue
Pleading and Evidence .
Substantive and Adjective Law .



57
58
64
65
69
73
77
79
82



CHAPTER IV

Divisions of Law

Formal Nature of Legal Classification ... 84
Impersonal and Personal Duties or Rights . . 85
Personal Duties dependent on Will of Parties or

PRESCRIBED ];Y Law 91, 92

Public and Privatk Law .... .95

The State as a Party 100

Law as regarding Persons, Things, Actions . . 103
Equality of Persons in Modern Law .... 105



CONTENTS



^ - CHAPTER V

Persons

Relation of Persons to Things
Natural and Aiitikicial Persons .
Disabilities of Natural Persons .
Incapacities of Artificial Persons
CoRroKATK Duties and Rights



PAGE

111

114
122
125

128



CHAPTEE VI

Things, Events, and Acts

Things as Subject-Matter of Rights and Duties . 130

Corporeal Things 131

Intangible Elements of Wealth 132

Things as the Potentiality of Rights . . . 138

Summary 139

Events anu Acts 141

"Acts of the Law" and "Acts in the Law" . . 144

Intention and Motive 147

External Motive 152

Internal Motive 154

Act, Intention, and Consequences . . . 155, 156

Unintended Consequences 160

Duties as dependent on Acts, Intention and Con-
sent 161, 162

Mistake and Ignorance 163

Liabilities independent of Intent .... 166

Extent of Liaiulity for Consequences . . 169



CHAPTER VII

Relation of Persons to Things : Possession and
Ownership



General Notion of Property
Title



171
175



FIRST BOOK OF JURISPRUDENCE



ownkkship

Possession, Ownership, Real Rights

Possession as Evidence of Title .

Possession as Origin of Title

Possession historically prior to Ownership

Prescription and Limitation of Actions

Servitudes or Easements ....

Incorporeal exclusive Rights

Debts and other Obligations as Property .



PACE

. 178

. 180

183, 185

. 186

. 188

. 190

. 192

. 201

. 205



CHAPTEE VIII

Claims of Persons on Persons : Relation of
Obligations to Property



Personal Duties

Personal Obligations in Early and Modeii

Contracts for Sale .

Contracts for Payment .

Transferable Contracts

Negotiable Instruments .

Shares and Stocks .

Contractual Rights as Property

Rights arising from Wrongful Acts



. 207
N Law 209, 211
213
216
217
219
221
223
226



PART II

LEGAL AUTHORITIES AND THEIR USE



CHAPTEE I
The Express Forms op Law
Forms of stating Law



Command ........

Maxim

Interpretation

Case-Law and other Systems ok Interpretation



232
234
235
238
241



CONTENTS xvu

CHAPTEE II

The Sources of English Law

PAGE

Written and Unwritten Law 247

Written : Original and Delegated Legislation . 247

Unwritten : Judicial and Non-Judicial Exposition . 249

Unwritten Law and Custom 252

The "Custom of the Realm" 255

Equity Jurisdiction in England 257

CHAPTEE III

Sovereignty in English Law

The Supremacy of Parliament 261

Acts of Parliament not Judicially Disputable . 270
Sovereignty distinguished from i^ltimate Political

Power 271

CHAPTEE IV

Custom in English Law

Custom : What it Means 280

Conditions of Validity 281

Ancient : Examples 283

Rules now merged in General Law . . 284

The Law Merchant 285

Local 289

CHAPTEE V

Law Reports

What ark Reports 291

Origins in England : Bracton 294

The Year Books . . 294, 301



xviu FIRST BOOK OF JITRISPRUDENCE

PAGE

Anglo-French and its Degradation .... 298

Early Private Reports 305

Commencement of Modern Reporting . . . 307

The Law Reports 311

English and American Case - Law : its estimated

Bulk 313

Use of Authorities 316

CHAPTER VI

Case-Law and Precedents

Authority of Decisions 319

Early Statements 321

Modern Usage : Co-ordinate Authority . . . 324

Manifest Error 326

Decisions confirmed by long Usage .... 326

Courts of Appeal 328

House of Lords: Whether bound by its own Decisions 332

Judicial Committee of the Privy Council . . . 338

Criminal Appeals 340

Supreme Court of the United States .... 341

Decisions in other Common Law Jurisdictions . . 342

Nisi Prius Decisions 344

Roman and Foreign Law 347

CHAPTER VII

Ancient and Modern Statutes

Ancient Acts of Parliament : how Framed . . 352

Professional Jealousy of Statute Law . . . 354

Degeneration of Workmanship in Tudor Period . 355

Modern Reforms 359

Criminal Statutes 364

Codification 365

INDEX 369



1 PAET I

SOME GENEEAL LEGAL NOTIONS



CHAPTEE I



THE NATURE AND MEANING OF LAW



We find iu all human sciences that those ideas Difficulty

of the most

which seem to be most simple are really the most general

ideas in all

difficult to grasp with certainty and express with sciences.
accuracy. The clearest witness to this fact is
borne by the oldest of the sciences, Geometry. No
difficulty whatever is found in defining a parabola,
or a circle, or a triangle. When we come to a
straight line, still more when we speak of a line
in general, we feel that it is not so easy to be
satisfied. And if it occurs to us to ask the
geometer what is the relation of his " length
without breadth " to the sensible phenomena of
space, matter, and motion, we shall find ourselves
on the verge of problems which are still too deep
for all the resources of mathematics and meta-
physics together. A philologist will be ready



FIRST BOOK OF JURISPRUDENCE



CHAP.



No com-
plete
theory
of law
without
complete
theory of
society :
but ap-
proximate
generalisa-
tion
needful.



enough with his answer if we question him on the
Greek or the Slavonic verb. If we ask him what
is a verb in general we may have to wait a little,
and if we ask him to account for language itself
we shall find ourselves again in a region of doubt
and contention. It is not surprising, then, that the
student approaching the science of law should find
the formal definiteness of its ideas to vary inversely
with their generality. No tolerably prepared candi-
date in an English or American law school will
hesitate to define an estate in fee simple : on the
other hand, the greater have been a lawyer's
opportunities of knowledge, and the more time he
has given to the study of legal principles, the
greater will be his hesitation in face of the
apparently simple question. What is Law ?

In fact, a complete answer to this question is
not possible unless and until we have a complete
theory of the nature and functions of human
society. Yet we cannot afford to wait for such a
theory, for we are born into a social and political
world from which we cannot escape. Rule, custom,
and law beset us on every side. Even if at this or
that point we go about to defy them we cannot
ignore them ; and the possible points of revolt, as
reflection will show, are really but few even in



I THE NATURE AND MEANING OF LAW 5

such kinds of life as are called lawless. "We have
to abide the law whether we will or no ; and to
abide it, on the whole, in obedience rather than in
resistance. The French Revolution seemed, and in
many respect:^ was, a fundamental catastrophe: but
it appeared, as things resumed a settled frame, that
a large proportion of French institutions, traditions
of policy, and positive laws too, had survived the
Revolution. If then we are to obey with under-
standing, we must endeavour to understand so
much as is needful for the purpose in hand, relying
on the most approximately certain data that we can
command.

Man cannot live alone ; the individual cannot Society

cannot

do without the family ; and although family groups exist with
can be conceived as independent and self-sufficing, of social
the family has from very early times been in like
manner part of a larger society, whether it be a
clan, a tribe, or a nation, with which it is bound
up. No society can continue without some uniform
practice and habits of life. Individual impulse has
to be subordinated to this need ; and this sub-
ordination is a never-ending process. Hence there
nmst be rule and constraint ; and not the less so
because, in one sense, the aims of the society and



6 FIRST BOOK OF JURISPRUDENCE chap.

of the individual coincide. On the whole and in
the long run the interest of the individual is that
society should exist. This is obviously true ; but
it is far from obviously true, indeed it seems not
to be true, that his interest coincides always or
everywhere with the interest of the society whereof
he is a member, either as it really is or as it seems
to be to those who conduct its affairs. Society
comes into existence because its members could not
live without it ; but in continuing to exist it
forthwith aims at an ideal, and that ideal is for the
society and not for the individual member. The
need for internal order is as constant as the need
for external defence. No society can be stable in
wliich either of these requirements substantially
fails to be provided for ; and internal order means
a great deal more than the protection of individuals
against wilful revolt or wanton lawlessness. Ex-
press and definite forms of association are required
for the fulfilment of these purposes and the main-
tenance of a perpetual succession from one genera-
tion of men living in society to another. When
established, these forms embody and preserve the
individual character of every self - maintaining
community. In the sum of such forms, as express-
in" and determiuins; in each case the conditions of



I THE NATURE AND JIEANING OF LAW 7

collective life and well-being, we have the State.
We say well-being with reference to the ideal and
not with reference to the actual success attained.
Some States have secured the well-being of their
members much better than others, and the less
successful ones may be called relatively bad, or in
some cases even very bad. Still an inferior social
organisation, though measurably worse than other
and better forms, is immeasurably better than none.

Further, if the State is to be permanent, we The state

ii66cls rnlcs

need more than the existence of some kind of binding on

citizens tis

social rule. We conceive many rules, the common such.
and fundamental ones in matters of right and
wrong, for example, to be binding on men simply
as rational and social bein<is, without regard to
any positive institutions. But this will not suffice
for the State, which is an association for living
together in definite ways. There must be rules
binding the members of the State not merely as
human or rational, but as members of that State ;
and this is not affected by the fact that to some
extent, perhaps to a large extent, such rules include
the matter of universal or more higlily general
duties which are of antecedent and independent
force. Wherever any considerable degree of civil-
isation has been reached, we find means appointed



8 FIRST BOOK OF JURISPRUDENCE chap.

by public authority for declaring, administering,
and enforcing rules of this kind. In dealing with
these rules, as with all others, both the persons
administering them and those whose interests are
affected have to attend not only to the rules or
principles themselves, but to the conditions under
which they become applicable, the mode in which
they are applied, and the consequences of their

Such rules application. The sum of such rules as existing in !

law! ^ given commonwealth, under whatever particular

\ forms, is what in common speech we understand
by law; the publicly appointed or recognised
bodies which administer such rules are courts of
justice. By justice, in this usage, we mean not ,
only the doing of right, or the duty thereof, as 1 1
between man and man, but the purpose and en-
deavour of the State to cause right to be done. j

Law not lu modern times and in civilised countries we

necessarily

profes- find the work of courts of justice carried on by

sional or . . • ^ ^ ■ t n

official. permanent omcers ; it is a special kind oi \\ork,
and the knowledge of law is a special kind of
knowledge which can be acquired only by a pro-
fessional training. Law has developed an art and
a science of its own just as much as medicine.
These conditions are now so usual that we might
easily think them necessary ; but they are not so.



I THE NATURE AND MEANING OF LAW 9

Law and legal justice can exist without a profession
of judges or advocates ; and where a legal profession
exists, its divisions, and the relation of its branches
to one another, have varied and still vary to a
wide extent in highly civilised countries and down
to our own times. Thus at Kome under the later
Kepublic and the early Empire there was a class
of highly skilled advocates, and under the Empire
there was something like a Ministry of Justice, but
for a long time there was nothing answering to the
ordinary judicial establishments of modern States.
In England it does not appeal' that before the
Norman Conquest there was any distinct legal
profession at all, and in the succeeding Anglo-
Norman period there were professional or at any
rate skilled judges, but no professional advocates.
In Iceland, about the same time, there was a highly
technical system of law ; ' courts were regularly
held, and their constitution was the subject of
minute rules ; and there were generally two or
three persons to be found who liad the reputation
of being more skilled in law than their neighbours.
Yet with all this there were neither judges nor
counsellors in our modern sense. It is the ad-

' There is quite euough to support this statement apart from /
the elaborate pleadings set out in the present text ol' the Njdls
Saga, which are believed to be of much later introduction.



10 FIRST BOOK OF JURISPRUDENCE chap.

ministration of justice with some sort of regularity
that marks the existence of law, not the complete-
ness of the rules administered, nor any official
character of those who administer them.
Custom. There has been much discussion about the

relation of custom to law. Custom, except in
distinctly technical applications which are really
part of a developed legal system, seems to have no
primary meaning beyond that of a rule or habit of
action which is in fact used or observed (we may
perhaps add, consciously used or observed) by some
body or class of persons, or even by one person. It
was the "custom" of Hamlet's father to sleep in his
orchard of the afternoon. In the Morte d'Arthu?'
we constantly read of a " custom " peculiar to this
or that knight ; for example, Sir Dinadan had such
a custom that he loved every good knight, and Sir
Galahalt, " the hault prince," had a custom that he
would eat no fish. And it is still correct, though
less common than it was, to use the word in this
manner. Often custom is the usage of some class
or body less extensive than the State, such as the
inhabitants of a city, the members of a trade. But


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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 1 of 22)