Page images

so delicate a question as the estimation of conduct by the light of experience should be reconsidered in a calmer atmosphere than a Court of Nisi Prius.

The objection, as it strikes me, to our present system lies not, in principle, to Judges reviewing the decision of the Jury upon questions of experience, but to the roundabout and cramped mode in which Judges often arrive at the task which they are called upon to perform. Shut up, as Common Law judges theoretically are, within the region of strict law, they are obliged, in order to bring these questions within their cognisance at all, either to do violence to language by calling them questions of law, or to enter upon the vague and ambiguous inquiry whether there was any evidence for the Jury, and to pretend that that also is a question of law. It would certainly be advantageous if we could get rid of this tortuous procedure. For instance, it would be beiter if it were fully understood that in ordinary cases of negligence there was a question neither of fact nor of law—a question to be submitted to the Jury, but in which the opinion of the Jury was not final—a question as to which the verdict of the Jury might be reconsidered in banco. The case actually coming up for decision in banco would thus be simplified, and embarrassment would be avoided in dealing with other cases. Our Law Reports are filled with cases upon negligence. I do not say these ought not to be published. These decisions may serve as a check upon caprice, and, upon some topics, as a nursery for new rules of law of a useful kind. But it is, I think, clear that Judges ought to be allowed to deal with prior decisions upon such a subject as negligence with far greater freedom than they possess at present, and to treat these decisions as furnishing only a guide and not a binding authority. The long arguments and ingenious devices to which Judges have to resort in order to distinguish prior decisions the authority of which they wish to elude, greatly disfigure their judgments, and

the sound sense which generally lies at the bottom of those judgments is very often completely lost in the cloud of casuistry by which it is surrounded.

Where the Judge decides the whole case without a jury, these roundabout proceedings are indeed avoided, and he has generally no difficulty in placing before himself in a simple form the question to be determined. But here, also, I think it would be advantageous if, in the matter of authority, a distinction were made between prior decisions upon law and prior decisions upon questions dependent on experience, and if the binding authority of the former were distinguished from the guiding authority of the latter. I do not think this separation would impede the growth of useful rules of law, whilst it would confer upon Judges an advantageous degree of freedom in the exercise of their judgment. Surely if experience is to be appealed to, it is the experience of our own times which is chiefly to guide our judgment, and not that of a hundred or two hundred years ago.

The next point to which I wish to advert, and which is by far the most difficult one, is this: Does this triple division into questions of law, questions of fact, and questions of experience, in any way affect the conception of law itself ? Upon this point I can only at present venture to observe that Austin appears to me to have overlooked entirely the existence of any such intermediate questions as I have here indicated, as well as the fact above adverted to, that primary obligations are, to a great extent, only expressed by requiring conformity to what he would call a moral standard, or some other standard equally indeterminate. Austin would almost seem to deny that the arbitrium boni viri, or, as French lawyers call it, le bon sens et l'équité, can determine a legal duty. If Austin really means, as he seems to imply, that there is in such a case no law at all-(see 3rd Edition, p. 687)—the world is in a strange position. But I do not think that if it had occurred to Austin to consider this condition of things, he would have said that a command by the Sovereign authority to act in accordance with what a vir bonus would consider honest, prudent, skilful, or the like, this command being enforced by a sanction, was not a law. I have not discovered anything in his analysis of law which would compel him to say so, though it is clear that in the passage to which I refer, he for the moment thought so. It also seems to me certain that if this condition of the law had occurred to Austin, he must have modified some of his criticisms upon the definition of jurisprudence given in the Digest (p. 224). From these criticisms, as from the passage above referred to, it seems that Austin considered it necessary, in order that there should be any law at all, to keep out morality and any other equally uncertain test of conduct altogether. So long as the sovereign authority requires a man to perform, or to abstain from, a particular class of acts—as, for example, to have his children vaccinated, or not to enter upon his neighbour's close without his permission—this rigid exclusion may be made. But when a man is ordered, as he constantly is, to be honest and diligent, or to abstain from fraud or negligence, how can Austin's assertion be supported that “law is itself the standard of justice”? The sovereign authority has set up another standard—the standard of experience-or, if you like to call it so in the particular class of cases with which Austin is dealing—the standard of morality. Nor can Austin's observations be explained away by saying that in these cases the moral standard becomes the legal one. Austin evidently thought that the moral standard could not be made the test of a legal duty. He seems to consider it a “strange obliquity” of Lord Mansfield that he should have declared a moral consideration sufficient to support an express promise, and for the following reasons: “Moral obligation," he observes, “is an obligation imposed by

opinion, or an obligation imposed by God : that is, moral obligation is anything that we choose to call so, for the precepts of positive morality are infinitely varying, and the will of God, whether indicated by utility, or by a moral sense, is equally matter of dispute. This decision of Lord Mansfield, which assumes that the Judge is to enforce morality, enables the Judge to enforce just whatever he pleases." Possibly the doctrine here combated may be open to objection, still Austin's objections to it are too broadly stated. Judges do every day enforce obligations not a whit less vague than this; and, whether this doctrine (for which Lord Mansfield is here made responsible, but which is really due to Sir James Mackintosh) be correct or not, it cannot be reasonably objected to it that the obligation is only ascertainable by reference to a moral standard. If obligations so ascertained are, for the reasons given by Austin, not legal obligations at all, does it not follow that chapter after chapter of what is usually considered law must be struck out entirely? We must exclude a large part of the Law of Contract, much of the Law of Ownership, nearly half of what we specially call Equity, and nearly the whole Law of Torts in every country in Europe.

I have only one word more to add. I have spoken of Judges transgressing the boundaries of their functions, and have, unavoidably, used other expressions which might seem to indicate an intention to criticise adversely the administration of justice in our Courts of Common Law. This is not my intention. I hope no one will imagine that I am attempting to revive the exploded misconceptions of Bentham as to the action of Judges in English Courts of Justice. The mode in which Judges and Jurors co-operate in the administration of justice does equal honour to both. Taken upon the whole, it is a marvellous combination of skill and good sense. I do not even wish to criticise it, still less materially to disturb it. I only wish to see some parts of its rather intricate machinery work more effectually and with a little less friction.

W. MARKBY. Calcutta.



M HE career of this distinguished Irishman affords a fine

- example of a man rising to the highest position by the irrepressible force of genius and character. Like nearly all eminent Irish Lawyers he became a member of the House of Commons, and brought to that Assembly an amount of oratorical talent which placed him in the front rank of debaters. For the long period of nearly forty years, Mr. Whiteside held a prominent position in public estimation at the Bar, in the Senate, and on the Bench; and the distinctions he attained in these several stations, and the triumphs. he achieved, fully entitle him to be regarded among the most able advocates, renowned senators, and constitutional judges of the present century.

James Whiteside was born in the glebe-house of Delgany, in the Co. Wicklow, on the 13th August, 1806. His father, the Rev. William Whiteside, was Rector of that picturesque parish, and was highly respected for his amiable disposition, devotion to his sacred calling, and varied literary attainments. He died before either of his sons had seen many

« PreviousContinue »