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presents itself in the form of the judge being a
shareholder (for his own belioof or as trustee) in
some railway or other public company whose matters
are before him ; and it is also commonly waived by
the parties.^

^ City of London v. Wood, 12 Mod. at p. 687 : and see note on
next page.

- For a curious early illustration, too long for the text, see the
note at the end of this chapter, p. 278. For a modern discussion,
Thellusson v. Rendlesham (18f)9) 7 H.L.C. 429, 115 R.R. 229.

* For a reported example see Reedie v. L. cD N. IV. R. Co.
(1849) 4 Ex. 244, 20 L.J. Ex. 65, 80 R.R. .-)41; where Parke, B.,
stated that, being interested in the defendant company, he took
parfTn the case only at the request of counsel on both sides.



270 FIRST BOOK OF JURISPRUDENCE chap.

Acts of It is now quite well understood that the judges

Parliament

not will not discuss the validity of an Act of Parliament.

judicially • n

disputable. They will not even entertain allegations that a
private Act was obtained by fraud or improper
practices. If Parliament has been deceived, the
remedy is with Parliament alone. Within our own
time the late Mr. Justice Willes, a great master of
the Common Law, and always ready on fitting
occasions to maintain the dignity of the law and its
officers, laid this down in the plainest terms. An
attempt had been made to found an argument on the
suggestion that a local railway company's Acts had
been obtained, in effect, by a fraud on Parliament.

" It is further urged," said Willes, J., " that the
company is a mere nonentity, and there never were
any shares or shareholders. That resolves itself into
this, that Parliament was induced by fraudulent re-
citals to pass the Act which formed the company.
I would observe, as to these Acts of Parliament,
that they are the law of this land ; and we do not
sit here as a court of appeal from Parliament. It
was once said — I think in Hobart ^ — that, if an Act
of Parliament were to create a man judge in his own

^ In Day v. Suvadge, Hob. 87 ; "Even an Act of Pailianient
made against natural equity, as, to make a man judge in his own
case, is void in itself ; for, jura naturre sunt imnmtabilia, and they
are leges legum."



Ill SOVEREIGNTY IN ENGLISH LAW 271

case, the Court might disregard it. Tliat dictum,
however, stands as a warning, rather than an author-
ity to be followed. We sit here as servants of the
Queen and the legislature. Are we to act as regents
over what is done by Parliament with the consent
of the Queen, lords, and commons ? I deny that any
such authority exists. If an Act of Parliament has
been obtained improperly, it is for the legislature to
correct it by repealing it ; but, so long as it exists
as law, the Courts are bound to obey it. The
proceedings here are judicial, not autocratic, which
they would be if we could make laws instead of
administering them." ^

The sovereignty of Parliament being undisputed, Distinction

of legal

we have to bear in mind exactly what we under- sovereignty
stand by it for an English lawyer's purposes. No ultimate
power less than the King in Parliament is sovereign, power.
for that is the only power which can issue supreme
and uncontrolled legal commands. Parliament as a
whole, and Parliament alone, can make and alter
the law of the laud without reference to any other
authority. Moreover, we are not concerned, as
students of the sources of English law in general,
with the manner in which the action of the supreme

^ Lee V. Bude and Torrington By. Co. (1871) L.R. 6 C.P. at
p. 582. — — ~



272 FIRST BOOK OF JURISPRUDENCE chap.

legislature is determined. As matter of form, this
belongs to the special study of the English constitu-
tion and of the law and practice of Parliament. As
matter of substance, the consideration of political
power, of its practical seat and ultimate sources,
would take us out of the field of jurisprudence
proper and into that of politics and constitutional
liistory. It is now generally recognised that the
majority of the House of Commons has and exercises,
for all substantial intents, political supremacy in
these kingdoms. li cannot directly govern at all ;
it cannot legislate without the concurrence of the
House of Lords and the King.^ The King, how-
ever, can act only on the advice of Ministers, and
the Ministers of the King are chosen from the
party which commands a majority in the House oJ"
Commons. That majority, so long as it holds to-
gether, can cause its will to be observed, on the
whole, in every department of government. Or, to
put the same thing in a negative form which is
perhaps more accurate, it is not possible for the
Government of the United Kingdom to be carried



' The Parliament Act of 1911 has introduced an exception
which, as it can hardly be permanent in its present form, may still
be disregarded in stating the normal rule. Enough_^o^ay^that
the extraordinary power created by that Act is exercisable only Pji
strictly defined conditions.



in SOVEREIGNTY IN ENGLISH LAW 273

on by any lawful means in continuous opposition to
the majority of the House of Commons. But this
does not touch the doctrine of legal sovereignty.
The power which can ultimately determine the bent
of legislation, or control the execution of existing
laws, but cannot itself legislate, is not a legal but a
political power. Now the majority of the House of
Commons, as we said, does not govern or legislate.
The House of Commons itself has no power whatever
of issuing any direct legal commands except so far ,
as it can do so for the purpose of regulating its own |
procedure and discipline, and enforcing its own
privileges. It may practically make a statute in-
operative by refusing to vote the supplies necessary
for putting the statute in execution (a thing which
has been known to happen), but it cannot alter one
letter of the text. This is not what we understand
by sovereignty in the legal sense.

It has been said by one or two modern writers,
including Blackstone,^ that the electors who return
members to the House of Commons are sovereign or
exercise sovereignty. This involves a still greater
confusion of thought than attributing sovereignty
to the House of Commons when elected. The
persons chosen by the voters at a general election

1 Comm. i. 171.

T



274 FIRST BOOK OF JURISPRUDENCE chap.

will certainly form that part of the legislature in
which the controlling political power resides. But
that, as we have seen, does not make them sovereign,
much less does it make the electors sovereign. In
fact the electors are not legislators or anything like
legislators. They have not the power of issuing
any legal commands at all. An identical resolution
passed by the electors of every constituency in
England, or a large majority of the constituencies, at
the time of a general election or at any other time,
might be a very notable political event. But it
would certainly have no legal force whatever. It
would create no kind of legal authority, justification
or excuse, and no court of justice would be entitled
(much less bound) to pay any attention to it. As
Cornewall Lewis long ago rightly said, " The right
of voting for the election of one who is to possess
a share of the sovereignty is itself no more a share
of the sovereignty than the right of publishing a
political treatise or a political newspaper." ^
Cases of Although the whole theory of Sovereignty is

complex " y" "~ ' ' "

or divided modern, and in fact could not have been definitely

" held or expressed before the principal states of

modern Europe had acquired a strong and consoli-

. ' Remarks on the Use and Abuse of some Political Terms, Lend. I
j 1832, p. 43. '



Ill SOVEREIGNTY IN ENGLISH LAW 275

dated government, writers on the philosophy of law
and politics have readily fallen into the way of
assuming that civilised government cannot exist, or
can exist only in an imperfect manner, unless there
is some definite body in the State to which sove-
reignty can be attributed. Thus Blackstone ^ says :

lloweV'er they [existing forms of government] began,

t or by what right soever they subsist, there is and must be

in all of them a supreme, irresistible, absolute, uncontrolled

authority, in which the jura suvima imperii or the rights of

[ sovereignty reside.

Blackstone's language is well enough suited to
the facts that can be observed in the longitude of
Oxford or of Paris, and it probably did not occur
to him to look much farther. Even in Blackstone's
time, however, there might have been some trouble
in discovering the ju7'a suvima imperii in the
constitution of the Holy Roman Empire, which
was then living in a decrepit old age, but living
still. In our own time, if we extend our view
eastward to Bern, or as far west as Washington
or Ottawa, we may find reason to think that Black-
stone laid down the supposed necessity of an
absolute uncontrolled authority in terms altogether
too peremptory and universal. It would not be

^ Comm. i. 49.



276 FIRST BOOK OF JURISPRUDENCE chap.

appropriate here to enter on the problems, whether
legal or political, that are raised by the institutions
of federal governments like those of the United
States and Switzerland, and in a less complicated
degree by those of countries where, as in the Nether-
lands or an individual American State within the
Union, such as the Commonwealth of Massachusetts
or the State of Illinois, the constitution is in fact
defined by a fundamental written instrument, and
the terms of that instrument cannot be altered
by the process of ordinary legislation. In all such
cases the ordinary legislative body is in a position
much like that of the legislature in a self-governing
British colony. We can hardly say that it is in
no sense sovereign, for within the bounds of its
competence it knows no human superior. But
since its competence has assigned and known
bounds, we cannot attribute sovereignty to it in
the same sense in which sovereignty is attributed
to the British Parliament. Where there is a rigid
constitution, to use the convenient term introduced
by Lord Bryce and Mr, Dicey,^ there cannot be any

^ A. \. Dicey, The Laiv of the Conslitution. Mr. Dicey is, I
believe, the first writer who has clearly pointed out that the vital
difference is not between federal and centralised governments. It
is true that a federal constitution must be rigid, or it will not be
truly federah But'a Tno n^ecleral state may equally well have a
rigid constitution, though it need irot; ah"d"rri3eed the great



Ill SOVEREIGNTY IN ENGLISH LA'^V 277

one body in permanent existence or luibitual activity
which possesses unlimited sovereignty. The nearest
approach to Parliamentary sovereignty as we have
it in England must be sought, in every such case,
wherever the ultimate power of altering the written
constitution is placed by the constitution itself.
In the United States, for example, this amending
power is exerciseable only with the consent of
three-fourths of the States expressed either by their
legislatures or in special conventions, and, moreover,
no State can be deprived of its equal suffrage in
the Senate without its own consent.^ The English
doctrine of ;il)Solute sovereignty is not capable of
being usefully applied to constitutions of this type.
In fact it is a generalisation from the " omnipotence "
of the British Parliament, an attribute which has
been the offspring of our peculiar history, and
may quite possibly suffer some considerable change
within times not far distant. Such a constitution
as that of the United States or of Switzerland may
be said to give a definite meaning to the sovereignty

majo rity ha ve. For details see Bryce, Studies in History and
Jurisprudence, O.xf. 1901, Essays iii. and x. Prof. John C. Gray,
iu his Columbia University Lectures on "The Natiu'e and
Sources of the Law," 1909, § 180, was clear that in the United
States there is "no one sovereign 'in Austin's sense, witli com-
plete powers."'

^ Const, of U.S., Art. v.



278 FIRST BOOK OF JURISPRUDENCE " chap.

of the people, as opposed to the power or caprice
of transitory majorities.

Note to p. 269.

A case on the privileges of the Chancellor of Oxford
is reported at considerable length in the Year Book of 8
Hen. VI., p. 18, and cited by Blackstone, Comm. iii. 299.
The question was whether a certain charter of Richard II.
.purported to empower the Chancellor to act as judge in cases
where he was himself a party, and if it did, whether such a
grant was good. At p. 20, Rolf, of counsel for the Chancellor,
is reported to have said : —

" Jeo vous dirai un fable [in medieval usage ' fable '
is merely 'story,' whether believed by the speaker to be
true or false] : En ascun temps fuit un Pape, & avoit fait
un grand offence, & le cardinals vindrent a luy & disoyent
a luy, Peccasti, & il dit, Judica [sic] me : & ils disoyent,
non possumus, quia caput es Ecclesiae, .judica te ipsum :
Et TApostol' [apostolicns, a common synonym for the Pope]
dit, Judico me cremari : & fuit combustus : & en cest cas
11 fuit son juge demesne, & ajires fuit un Sainct : & issint
n'est pas inconvenient que un homesoit [son] juge demesne,"
etc.

How this tale came into England I know not. The
legend of a Pope having deposed himself was, however,
cur rent i n the ]\Iiddle Ages. It first appears in the apocry-
phal acts of the Council of Sinuessa, where Marcellinus
is said to have abdicated or deposed himself for the sin
of idolatry (see Dolliuger, Die Papstfabeln des Mittelalters,
p. 48). That story was re-told in an elaborate form by
Bonitho, an Italian writer of the eleventh century, and the
same Bonitho used it, with only slight variations of language,
to describe the fact, in itself undoubted, of Gregory VI.'s
deposition for simony at the synod of Sutri, a.d. 1046.



Ill SOVEREIGNTY IN ENGLISH LAW 279

No other chronicler confirms the alleged circumstances, and
Bonitho seems to have introduced them from the older
legend for the purpose of supporting the doctrine that the
Pope is not subject to any earthly jurisdiction. According
to all other witnesses, Gregory VI. was in fact deposed by
the Emperor : see Jaffe in Momimenta Gregoriana, Bibl.
Rer. Germ. ii. 599. But one or two modern writers seem
to think Bonitho's story had some foundation in fact :
Baxmann, Die Politik der Pcipste, ii. 206.



CHAPTEE IV

CUSTOM IN ENGLISH LAW

Custom iu We have already seen (p. 253) that "leges et

the special

sense. coiisuetudines regni was an accepted name for

the Common Law as a whole from an early timeJ
In a more limited sense, in which we more
usually meet with it in modern books, custom
signifies an addition or exception to the general law
of the land, established by allowed usage within
certain local bounds. The allowance of such special
customs is subject to conditions which, according to
Sir John Davis's report, were carefully defined early
in the seventeenth century by the king's judges in
Ireland, when it was decided that "Tanistry," the
Irish custom of inheritance, had been abrogated by
the introduction of English law. The statement is
not strictly of authority, but it has been commonly

^ Cp. F. A. Greer, "Custom in the Common Law," Laio
Quart. Jiev. ix. 153.

280



CHAP. IV CUSTOM IN ENGLISH LAW 281

quoted in England as a correct exposition of the
Common Law.

Custom, as understood in law, is usage which hath ,
obtained the force of law, and is in truth a binding law for
the particular place, persons and things concerned. Such ' \
custom cannot be established by grant of the king nor by
Act of Parliament, but is ins non scriptum and made solely
by the people of the place where the custom is received.
For where people find a certain act good and beneficial, and
apt and suitable to their disposition, they put the same in
practice from time to time, and so by repetition of such acts
a custom is made, and being used from time whereof memory
runs not, obtains the force of law. ... In short, custom is
a reasonable act, iterated, multiplied and continued by the
people from time whereof memory runs not.^

The general conditions required for the validity Conditious

of validity.

of a local custom are the following : —

1. The custom must be reasonable, that is, it \
must not be repugnant to any fundamental principle
of justice or law. A custom is void which purports
to enable an officer of a corporation to give a con-
clusive certificate in a matter in which the corpora-
tion is interested.^ Customary rights exercisable
over land must be in some way limited so that
they cannot be used to the total exhaustion or
destruction of the land in point of value.

2. The custom must have a reasonable com-

' Sir J. Davis, 31, 32 ; op. Blackstone, Comm. i. 74, 77.
- Day V. Savadge, Hob. 85.



282 FIRST BOOK OF JURISPRUDENCE chap.

mencement. This means that it must be capable of
being referred to a possible legal origin.

3. It must be certain. For if it could not be
reduced to certainty, there would not be any
binding rule.

4. It must be ancient. This condition does
not seem wholly consistent with the doctrine that
custom is made by popular consent ; for if so' why
should not new rules be made for new circumstances
by general consent expressed in habitual action ?
The historical explanation is that the commence-
ment of " legal memory " was left standing at a
fixed date by mere accident or inertia.^ But perhaps
the matter is of no considerable importance in prac-
tice ; for the truth is that in modern times there is
a demand for express regulation as soon as there is
any decided bent of opinion. Except in matters
outside the scope of positive law, the formation of
custom belongs to an archaic stage of legal history.

5. The usage which establishes a custom must
be continuous, that is, free from interruption by
acts inconsistent with the right claimed by force of
the custom ; and it must be exercised as of right,
that iS; the custom must be regarded by the persons
concerned as a binding rule and not a matter of

^ Blackstone, Covim. ii. 31, and Christian's note.



IV CUSTOM IN ENGLISH LAW 283

individual choice. Continental writers express this
requisite by the term opinio necessitatis}

True ancient customary law oj" this kind is to Examples

— ■ - ' of ancient

be found in local customs of inheritance and custom.
customary tenures ; also some local jurisdictions had
singular privileges and incidents even in relatively
modern times. Down to the middle of the seven-
teenth century the men of Halifax had a customary
jurisdiction extending to capital felonies, and in-
cluding the execution of the sentence by means of
a "primitive guillotine." The procedure dated in
substance from a time before the institution of the
petty jury.^ Perhaps the only customary judicial
privileges of any importance that still survive are ^.
those of the City of London. Many boroughs have \
peculiar local customs as to the tenure and convey-
ance of land within the borough, and sometimes
these diverge very widely from the rules of the
Common Law.^



^ Blackstone, i. 78, adds that there cannot be two inconsistent
customs in the same matter : which seems superfluous in principle.
It is really a point of pleading only. See 9 Co. Rep. 586 : the
defendant must expressly traverse the plaintiff's claim and not
merely allege a riglit in himself inconsistent with it.

- See Sir James Stephen's account of this in liis History of the
Criminal Laiv of Emjland, i. 265.

3 Busher v. Thompson (1846) 4 C.B. 48, 16 L.J. C.P. 57, 72 R.R.
529, where the Court did not decide on the validity of the custom.
lu the Island of Portland there is a custom, apparently never



284



FIRST BOOK OF JURISPRUDENCE



Local customs of cultivation such as are associated
with the term " Lammas land " are also typical
examples of this kind. There is every reason to
believe that in many cases they are really of high
antiquity. Customs of this class, however, have in
many modern cases had effect given to them, not as
true local laws, but as having been tacitly adopted
as terms or conditions of an agreement. This will
be further mentioned below.

The importance of local customs is steadily
diminishing in modern practice, except so ftir as it
may be needful to rely on custom in establishing
rights of common and the like, which of late years
(since about 1865) have been brought into con-
siderable prominence again.

Another use of the term " custom " is to denote
rules that once formed an exceptional body of law,

incorpor- ,.,.,. .,.

ated in the Dut have been adopted within historical times as

faw. part of the Common Law. Sometimes it is also

applied to the reception of a special law, as civil or

canon law, within particular jurisdictions ; in this

connection it either means nothing but the practice

of the court exercising such jurisdiction, or it is an



disputed, to convey lands of ancient demesne by "church gift,"
i.e. a declaration in the parish church with witness of the con-
gregation. In modern practice (since writing was required by
the Statute of Frauds) these conveyances are recorded by deed.



Custom in
sense of
rules now



IV CUSTOM IN ENGLISH LAW 285

euphemistic device to avoid any plain admission of
the fact that the Common Law, the law of the
king's superior courts, was at one time only one
among several systems of law claiming obedience
each within its own sphere.^ In the medieval
conception of legal order, custom might just as well
be personal as local ; it might be tlie usage of a
trade or condition of men as well as of a manor or
a city. There was nothing strange in calling even
individual habits and predilections by the name of
custom.- In one case, to use Blackstone's words,
" a particular system of customs used only among
one set of the king's subjects," namely merchants,
and " called the custom of merchants, or lex mer-
catoria" ^ has been adopted into the general law and
become an extremely important part of it.

At the very time that Blackstone was putting The law
his Commentaries into their finished form, in the
earliest years of the reign of George III., this pro-
cess was being accomplished. In the Middle Ages
we hear of the Law Merchant as something different
from the Common Law, which is administered by
special tribunals under the authority of the Chan-

^ Blackstone, Conim. i. 79, 80.

2 See this in Sir T. Malory's Morte cV Arthur, imssim, cp.
p. 10 above.
^ Comm. i. 75.



286 FIRST BOOK OF JURISPRUDENCE chap.

cellor, especially for the benefit of foreign mercliants
resorting to England.^ At that time the "custom
of merchants " meant the actual usage of the
European commercial world as it then was, which
was not too large a world to have pretty uniform
rules and understandings. In the seventeenth
century we find actions on bills of exchange brought
in the king's courts, and the custom of merchants
specially pleaded as a kind of personal law binding
upon the parties. Thus it came before the ordinary
tribunals, but as a thing to be specially proved in
every case." Only in the eighteenth century the
decisive step was taken of treating the rules of the
law merchant as within the knowledge of the judges,



^ ' ' This si;it is brought by an alien merchant, who has coine
here by safe conduct, and he is not bound to sue according to the
law of the land for to await the trial by twelve men and other
formalities, but he shall sue here [before the King's Council in
the Star Chamber], and it shall be determined according to the
law of nature in the Chancery . . . [and the King's jurisdiction
over them is] secunduvi leyeni naturae, called by some the Law
Merchant, which all the world over is an universal law." So
Stillington, Bishop of Bath and Wells and Chancellor, is reported
to have said in 1474 : Y.B. 13 Ed. IV. 9, pi. 5. (This is the case
in which the doctrine of larceny by a bailee " ))reaking bulk " was
' introduced.)

^ The early history of the Law Merchant in England is still far
from perfectly known. Sir John Macdonell's Introduction to
Smith's Mercantile Laic, ed. 1890, gives the best general account.
There is an interesting ciiapter on the subject in Carter, History of
Enrjlish Legal Institutions, 3rd ed., London, 1905, first published
in Law Quart. Rev. xvii. 232.



IV CUSTOM IN ENGLISH LAW 287

like the general law of the land, after they had once
been recognised by considered decision. Proof was
now neither required nor allowed. " When once


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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 16 of 22)