READINGS

DELIVERED BEFORE

THE HON. SOCIETY OF THE MIDDLE TEMPLE.

FIRST READING.

ON THE USES OF THE SCIENCE OF GENERAL JURISPRUDENCE, AND THE CLASSIFICATION OF LAWS.

I CANNOT perhaps more conveniently commence the performance of the duties intrusted to me, than by stating my views of the principles by which those duties should be regulated. I shall thereby show what use may be derived from my labours, and at the same time lay down a plan of my future course.

On the abstract question of the utility of lectures I shall say nothing, but proceed to describe the nature of the Readings, which are, in my opinion, required of me.

The

I might content myself with presenting to you mere explanatory treatises on different branches of our laws by a compilation of cases and other authorities. But however useful that course may be, I think that something more may be reasonably expected of me. digests and text books which are accessible to every student seem, indeed, to render readings of that simple description far less requisite than they used to be before Blackstone set the example of bringing the law into a perspicuous and even an elegant form. And I do not suppose that readings or lectures can be made a substitute for the private and diligent study of those books.

It will, therefore, be my endeavour to give information which is not immediately within your reach, and to show how that information may facilitate or render more valuable the knowledge acquired in the ordinary course of legal training and practice. That this can be done I have no doubt. Whether I can do it time will show. I can only say that no endeavour shall be wanting on my part.

B

Some of the most distinguished men of our profession have long felt that the sphere of legal learning in England ought to be enlarged. It is indeed obvious that when other sciences are being augmented with the genius, the industry, the enterprise, the invention, and the intellectual fertility-not of one country, but of the whole civilized worldthe science of law must fall below her high dignity if she be confined within the mere bounds of the practical daily necessities of the administration of justice. No human science is more noble, none more deserving of the widest and most liberal cultivation, without which its professors will hardly preserve their proper rank with regard to those of other sciences. Without this broad cultivation Municipal Law will become sterile and less able than it ought to be to meet all the exigences which changes, both social and political, and the progress of mankind must engender.

This is no doubt a topic of great practical importance in our days, when-partly from the natural course of the human mind, and partly from the great events which have lately agitated and convulsed the larger part of the civilized world-every institution of the country is narrowly scrutinized-every law is critically examined, and a strong feeling has been awakened that improvement is requisite in many parts of our Municipal Law.

How are we to meet these exigences? How are we to defend those laws which ought to be maintained, and usefully reform those which require improvement? The country will not be satisfied with appeals to mere precedent, or the established rules of positive law. We must be ready to give reasons for the law, drawn from sound practical philosophy, convincing to the minds of acute, practical, and judicious men. We must appeal to principles of justice and public utility. And where the law requires amendment, it must be reformed on some broad and sound principles, which can be done only by the light and guidance of the science of jurisprudence. That science is the necessary guide of the legislator in the performance of his duty, because it suggests remedies for defects or omissions of the Municipal Law, and, by presenting a general and coherent system to his mind, enables him to preserve a unity in his work, without which it must be a sort of patchwork and a series of experiments.

In the administration of justice, by the combined services of the Bench and the Bar, we cannot fail to see the value of a broad cultivation of the science of jurisprudence. Cases frequently occur in our Courts, for the decision of which the precedents and books of authority afford insufficient or no rules. In such cases, as the judges are always desirous of following the dictates of reason and substantial justice, it must be a great advantage to an advocate to have at his

disposal the vast mine of equitable principles and legal reasoning to be found in the Roman Law and the writings of the jurists. And the science of jurisprudence must be most valuable to a judge, where he finds himself forsaken, or imperfectly assisted, by the guides on whom he is accustomed to rely.

One instance of a case of this description will suffice, though many could be cited; and, indeed, it might be shown that the difficulties attending the settlement of the rights and liabilities of shareholders and provisional committeemen would have been diminished by the assistance of the great civilians and jurists. I refer to the case of Hammond v. Hall, 10 Sim. 551.

The question raised in that case, on motion to dissolve an injunction, was, Whether the owner of an old well can prevent his neighbour from sinking a well on his own land, on the ground that thereby the supply of water to the old well will be drawn off or diminished. The case was argued by counsel of the greatest eminence; and I perfectly remember that there was a paucity of English authorities on the question in dispute. But there are principles in the Roman Civil Law (in the titles on the Aquilian Law, and De Regulis Juris), and in Grotius, b. ii., chaps. iii. and viii., which afford a solution of the difficulty most reasonable and just. And the reason of the law on the point is given very concisely by Ulpian, in the 26th Law of the title of the Pandects, "De Damno Infecto." He says, "Proculus ait cum quis jure quid in suo faceret, quamvis promisisset damni infecti vicino, non tamen eum teneri ea stipulatione."a And he gives as an instance the case of a man who prevents water from flowing from his land to that of his neighbour. The meaning of the passage is, that though a man be bound by the stipulation damni infecti,-that is to say, not to do anything to injure his neighbour's property, yet he is not restrained from doing any lawful act incident to the enjoyment of his own property. And the very point in question, in the case of Hammond v. Hall, is decided accordingly by Ulpian, in the 1st Law, of the title of the Pandects, "De Aqua et Aqua Pluvia Arcenda." He says, "Denique Marcellus scribit, cum eo qui in suo fodiens, vicini fontem avertit nihil posse agi." And, in the case of Acton v. Blundel, 12 M. & W. 353, the same doctrine was laid down in a similar case; and both the learned counsel at the bar, and the Lord Chief Justice Tindal, made great use of texts of the Civil Law and the writings of the commentators.

In the case of Sutton v. Temple, 12 Mee. & Wel. 52,—which was an action of assumpsit for the use of pasture land, and the eatage of grass thereon growing,-evidence was given that after the lessee had put in And see L. 25, § 12, ff. De Damno Infecto.

his cattle he discovered that the land was covered with refuse paint, which poisoned several of the cattle; but there was no evidence to show that the paint was put there by the plaintiff, or that she knew of its being on the land.

Now the very point is decided by the following Law of Ulpian, in the Pandects (L. 19, § 1, ff. Locati Conducti), "Si saltum pascuum locasti in quo mala herba nascebatur: hic si pecora vel demortua sunt, vel etiam deteriora facta, quod interest præstabitur si scisti; si ignorasti, pensionem non petes." This text should have been cited, and no one can doubt that it must have had considerable weight with the judges, if it had been brought under their consideration.

Here we have practical instances of the use of looking for legal knowledge beyond our own books. In doubtful cases the judges are glad to be furnished by counsel with this species of learning. And in all cases where the Court is not absolutely bound by authorities, but is required to exercise a more or less extended judgment, a knowledge of the science of jurisprudence must be very valuable to show what may be the effects of laying down a particular doctrine, and how it will work with the system of the branch of law to which it belongs.

Lord Mansfield, that great master of jurisprudence, was the principal founder of our Commercial Law-and especially of our Law of Insurance, and it is easy to perceive that his decisions were framed with reference to a system of jurisprudence, and not merely on consideration of the particular case.

Some even of our greatest judges have, perhaps, shown in their decisions the defects of the exclusive nature of English legal education, which has until lately been too much confined to the study of our own Municipal Law. An instance of this is to be found in the case of Le Neve v. Le Neve, 1 Ves. 64; where Lord Hardwicke held, that if a deed respecting lands in any of the register counties is not registered, and afterwards the same lands are sold or mortgaged by a deed properly registered; if the person claiming under the second deed has notice of the first deed, the person claiming under the first deed, though it is not registered, shall be preferred to him. Mr. Butler, in one of his notes to Co. Litt., observes upon this case, that it is founded upon principles both just and equitable, but that it may be doubted whether a more rigid adherence to the letter of the statutes would not have been more beneficial to the public. He adds, that the French showed a much more rigid and pertinacious adherence to the letter of their laws respecting the registration of deeds and wills. And the learned writer relates that several laws respecting substitutions being unsettled, and the laws respecting them being different in different parts of the kingdom, they were all reduced into one

law by the celebrated Ordonnance of August, 1747. That ordonnance was framed by the Chancellor d'Aguesseau, after taking the sentiments of every parliament in the kingdom upon forty-five different questions proposed to them upon the subject. The 39th question is--whether a creditor or purchaser having notice of the substitution before his contract or purchase is to be admitted to plead the want of registration of the deed creating the substitution. All the parliaments except the parliament of Flanders agreed that he was; that to admit a contrary doctrine would make it always open to argument whether the party had or had not notice of the substitution; that this would lead to endless uncertainty, confusion, and perjury; and that it was better that the right of the subject should depend on certain and fixed principles of law, than upon rules and constructions of equity, which must be arbitrary, and, consequently, uncertain. The Ordonnance of August, 1747, was framed accordingly. And the same principle of law is embodied in the Code Napoléon, Art. 1071.

The Real Property Commissioners, and the Committee of the House of Commons, on the bill to erect a general registry of deeds, concurred in the views of the Chancellor d'Aguesseau; and it may be doubted whether the establishment of the doctrine in Le Neve v. Neve has not, by letting in the doctrine of notice, very materially defeated the objects of the Registration Acts.

Le

With all respect for the truly illlustrious name of Lord Hardwicke, it will probably be admitted that he took a more confined view of the matter in question than the Chancellor d'Aguesseau and the parliaments of France, and decided rather with reference to the particular case than on the broad principles of jurisprudence, for a masterly knowledge of which the French Chancellor is celebrated, and perhaps

unrivalled.

These reflections will probably suffice to suggest the importance of looking beyond our own reports and text books for legal knowledge, and extending the sphere of that knowledge—as much as our opportunities and our leisure will permit. I say it with this qualification because it is our first duty to learn our own national law. But we must not neglect whatever may be useful to extend and improve our law, and enable us to perform in the most perfect manner the duties which the constitution of our country has allotted to us, or may hereafter assign to us. More and more will be required of us as time rolls on, and the improvement of the country in learning and intelligence progressively increases; and we must therefore endeavour, by extending the sphere of our studies, to qualify ourselves for the greater services which will be required of us.

This is a topic especially important to the students and other junior