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of Exchange," * to quote Story's concluding remarks on this subject, “ can hardly be deemed to consist of the mere municipal regulations of any one country. It may, with far more propriety, be deemed to be founded upon, and to embody, the usages of Merchants in different commercial countries and the general principle Ex æquo et bono as to the rights, duties and obligations, of the parties, deducible from those usages, and from the principle of natural law applicable thereto.” The usages and customs of the merchants of Northern Europe, to a certain extent, resemble each other; the same common sense and appreciation of what is useful in matters of trade exists in all these countries. It may hence be re-affirmed that their codification is a matter quite within the reach of the practical jurist and of the legislator.
H. D. JENCKEN.
THE NEW SCIENCE OF LAW.
PART II. THE next important branch of the Science of Law is the 1 limitation of legal phenomena, or the discovery of the line of demarcation between legal and social phenomena. This may be denominated the ascertainment of the province of Law. The province of Law has been discussed almost as profusely as the foundation of Law; and with results as indefinite in the former case as in the latter. If it be said that Law has to do with the property and lives of the members of the Community, there will arise diverse interpretations of the terms “lives ” and “property.” Religion and morality have to do with the lives and property of men. These by moulding the character influence, and by positive
* Story, Bills of Exch., 8. 20.
precepts direct, the conduct and lives of individuals and their use of their property. The moral and religious law declares “Thou shalt not steal ;" likewise the municipal law. The moral and religious law declares “ Thou shalt not kill ;" and the same is true of the municipal law. It may be said that the moral law has exclusive dominion over the hearts and thoughts of men. But the municipal law has assumed to control the education of children and the worship of adults. The law often inquires into the intention of persons in committing certain acts. In cases of homicide, the intention governs the character of the offence and the penalty. In construing a contract the intention of the parties is to be ascertained, and extrinsic evidence will be admitted to throw light upon the intention if the parties have not so plainly expressed their minds that they will not be allowed to show that their intention was different from what appears in the contract. The law assumes to suppress vice, crime, immorality. It will not enforce a contract which is obviously contrary to good morals or public policy. It may be urged then that the moral law has exclusive dominion of the motives of men when not accompanied by the acts. But that is not strictly true. Even a threat or a slanderous word sometimes renders the person making it amenable to the law. One has the right in this country to enter his neighbour's house on invitation for the purpose of transacting any lawful business, or engaging in friendly intercourse. But if he enter his neighbour's house with the intention of feloniously taking his goods—if he is admitted in the usual way, but after his entrance, is prevented by the continuous presence of some members of the household from executing his design, and he quietly takes his departure, the law would hold him responsible if his purpose could be proved. Of course, the difficulty in such cases is in proving the intent. But I doubt not that the law could properly punish a felonious or immoral intent, in some cases, if there could be any reliable evidence of it, without accompanying words or deeds. Again the law is not to be distinguished from morality, as many distinguish it,* in respect to the principle of its operation. The statement is often made that a thing may be legally right and morally wrong, and the reverse. Now, in the beginning of all legal systems, in the rudimentary stages of all society, the moral and municipal law were both ad. ministered by the same tribunal, and adjudged by the same authority. The same principles were applied in the decision of all classes of questions, and there was no division into legal and non-legal questions or principles of adjudication. This union of the so-called moral and legal modes and principles may be seen in the Pentateuch, the Talmud, the Institutes of Menu, and the methods of applying them to the affairs of men. Originally the priests were the judges; gradually the affairs of life became so extensive and complicated, and so numerous became the cases for judicial interference that a person or class of persons were set apart for the special purpose of settling disputes among men and for enforcing penalties. Hence arose the judicial class in contradistinction to the priestly class. But law did not then cease to be moral. The State has always professed to be the friend of religion and morality, and has always upheld both religion and morality whenever it has had the opportunity. The principle of deciding questions in court has always been the same as the principles applied in the church and in the conscience. The judge declares the right as truly as the priest or the conscience. In the division of functions which occurred on the separation of the priesthood from the judiciary, certain classes of questions were referred to the courts, and certain classes to the church for decision, while a large class of questions were retained—as was the case before the division of functions—by the conscience. Little by little these separate tribunals became distinct, and
each acquired its own rules, and settled its own jurisdiction. Conflict after conflict has gone on among these tribunals as to their appropriate jurisdiction. An adequate review of the development of the jurisdiction of the courts, the church, and the individual conscience, would carry me beyond the proper limits of this article. Suffice it to say that the body of rules arising in these separate tribunals has been denominated respectively law, religion and morality; and that is the principal distinction between them. The moral law is concerned more largely with psychical conditions than is the municipal law; and municipal law is concerned more largely with physical conditions than is the moral law. The moral law is enforced more largely by psychical power than is the municipal law; and the municipal law is enforced more largely by physical power than is the moral law.
It is true that after a system of jurisprudence has reached a considerable degree of perfection, there may seem a wide difference between the application of its rules to certain cases, and the application of moral rules. This arises from the establishment of precedents and general rules which cannot be deviated from to meet all special cases. In this respect, however, the municipal law is not inferior to ecclesiastical law. Although both assume to be based on principles which are, to say the least, not immoral, yet after long periods have elapsed and a body of decisions, precedents, and rules have arisen, neither the courts nor the churches feel themselves at liberty to depart from the general and uniform rules to meet extraordinary and peculiar cases. And there are those who affirm that it is morally wrong to erect public buildings, magnificent and costly, while there are thousands in the State who are poor and helpless, and living in want in dirty hovels. And so there are those who affirm that it is morally wrong for a church to build temples for worship, massive and expensive, while there are the same poor and helpless people living in the community. There are those who assert that the law is morally wrong because a just debt cannot be collected after the statute of limitations has run against it; just as there are those who assert that the church is morally wrong in not administering her rites to all persons without exacting the performance of precedent conditions. But the moral law itself has its general rules ; and the conscience has established precedents which the individual regards as binding upon himself. And there are those who affirm that morality is subserved by refusing charity to vagrants, claiming that charitable dispensations tend to increase vagrancy, and that such persons are better off in the workhouse. A dozen cases occur in the life of the individual, to one in the State and the Church, where general rules dominate over special rules.
In order to meet special cases, or cases where the existing law has been deemed inadequate, courts of equity in contra. distinction to courts of law have been established in some countries. But the difference between “law and equity” is one of form and not of substance, of procedure and not of right. No principle of equity would allow any rule, absolutely contradictory to the rule of law, to be applied. The only purpose which a court of equity can serve is to furnish a remedy which a court of law does not furnish. The distinction between law and equity is not a substantial or tenable one, and should be effaced from our jurisprudence. Law in its largest sense is equity; and equity is no more than law. Equity courts are simply media for the creation of new rules of law. In these views I am sustained by Lord Moncreiff, in his address before the Social Science Association, at Glasgow, September 30th, 1874. He says “ There is no distinction between law and equity in any philosophical acceptation of these terms, for equity is the basis of law. Law, divorced from equity, is a monster which could have no place in any system of jurisprudence. But the truth is that in England the distinction is not truly expressed by the nomenclature. It is not one between the subject-matter or