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some of the higher animals, such as orang-outangs and peccaries, who will deliberately avenge the death of a comrade.

Note, however, that the primitive group had no executive machinery for putting down violence, even if we allow that it might be roused occasionally to common action by some specially atrocious deed which manifestly struck at the life of the community, e. 8., betrayal to a hostile group or insult to the tribal gods. This is probably the origin of that popular process known as the 'hue and cry', which later developments have refined into the posse comitatus of the modern sheriff. For the most part, however, the violence merely directed against individuals is left to the homeopathic treatment of the blood feud - how established, we know not, but quite evidently based on a sound knowledge of human nature. Why the infliction of suffering should be an assuagement of suffering undergone by the agent, is one of the mysteries of human nature. The fact that it is so, in unrefined human nature, can hardly be questioned by students of social history.5

From the blood feud springs, by palpable filiation, the litigatory process, i. e., the older type of civil action, in which the complainant tries to make good his claim against the defendant according to the rules of the game, the court (whether consisting of village elders or a royal official) merely standing by to see fair play. The prize of victory is older than the civilized lawsuit, and has persisted into that stage. It is the wergild or blood-fine, now rationalized (somewhat imperfectly) into 'damages', and supposed to be based on the material loss suffered by the plaintiff; but the very confusion between 'damages' and 'damage' will suggest that there are still traces of the old idea of consoling the plaintiff by the suffering of the defendant. Later, of course, comes the inquisition process, in which the King or State, now firmly established, conducts an investigation on his or its own account, and, according to his or its views of the wrongdoer's conduct, awards punishment for the good of the latter's soul or as a warning to others. At first this type of

• A reference to this venerable institution is clearly contained in that very modern statute, the Sheriffs Act, 1887 (s. 8. The 'cry of the country').

5 The references to the blood feud in early codes are numerous. One of the best known is that of the Twelve Tables (ʻsi membrum rupit, ni cum eo pacit, talio esto').

. The intermediate stage is the 'penal action,' well known in classical Roman law, and still faintly surviving in England. “Vindictive damages' are, perhaps, also a survival of the same ideal.

process is confined to acts which threaten the safety of the community - i. e., it is an alternative of the rough communal action above described. But later on, as in the English equity' jurisdiction, it may be placed at the disposal of the private litigant.

One of the most curious facts of English legal history is that, parallel with this application of the inquisition process to civil actions, there was a profound reaction, due, of course, largely to the jury system, toward the litigatory type of process in the original domain of the inquisition - viz., criminal prosecutions. Of the gain to humanity of this reaction, there can be no question. Bloodthirsty as was the English criminal law in the eighteenth century, its administration was rose water compared with the unspeakable horrors of contemporary Continental systems. It can hardly be doubted that this modification of the inquisitionary character of criminal process also facilitated greatly the supersession of the old

appeal of felony' by the more civilized procedure of indictment; ? and it would be interesting to compare in detail the corresponding movement, before alluded to,8 in Continental criminal systems, which admitted the partie civile to a formal partnership with the State in the conduct of prosecutions. At first sight it looks as though the root idea in both policies were the same, viz., the enlisting of the primitive desire of individual vengeance on the side of the common interest; but the difference in the methods is not without significance.

And if we look a little deeper into the characteristics of English law, we shall probably realize that the very success of the executive government in England in repressing disorder and ‘self-help' seems to have arrested the development of what may be called 'community action' through law. For, whilst the long agony of the wars of religion on the Continent was at last ended only by that deification of the State which produced the absolutism of the eighteenth century,' the comparatively mild experiences of England in

? Of course there were other and more specific inducements - e. 8., the provision of the statute of 1529, which enabled the prosecutor in robbery or larceny to recover his goods after conviction of the thief (Short History of English Law, pp. 156–57).

30 Harv. L. REV. 9. • Perhaps, as v. Bar appears to hint, the 'reception of the Roman law may have had something to do with the change. But as v. Bar himself points out, the Roman conception was itself due to the bellicose history of the Roman City State (HISTORY OF CONTINENTAL CRIMINAL Law (Am. translation), pp. 17, 203).

the Wars of the Roses and the Civil War left the average Englishman still unaware of that abstract ‘sovereign' which the speculations of Bodin and Montesquieu, and the despair caused by social anarchy, were generating on the Continent. In spite of Hobbes and his Leviathan, the average Englishman remained cold to the notion of an abstract, all-powerful, passionless Commonwealth, and preferred to speak and think of a King who was, no doubt, by far the most powerful person in the land, with a vast machinery of Parliament and Courts of Justice acting in his name, whose help it was especially valuable to have on one's side, but still, on the whole, a perfectly concrete and intelligible person, with human weaknesses and limitations. It may have been want of imagination, incapacity for idealism, any other ‘innate' defect you like in the Englishman's character; but it seems at least to have left him a singularly practical and self-reliant person, who, in that eighteenth century when the Continent was absorbed in dynastic and territorial wars, was quietly gathering to himself a world-wide empire, which the mismanagement of a handful of 'State' officials at Whitehall did its best, happily with only partial success, to destroy.

And, of course, it is idle to suppose that a people with the record of the English in the eighteenth century was without ideals. The world had, on the whole, gone very well with the Englishman; and this fact, added, doubtless, to his insular position, had generated in him a bold spirit of self-confidence which not only led him to compare himself favourably with foreigners, but caused him to resent fiercely any interference with his freedom of action. He had a deep respect for law, but from a strictly individual standpoint, as a shield which would at once protect him against the encroachments of others upon his freedom, whether those others were government officials or private persons, and yet leave him at liberty to carry on his own pursuits, regardless, to a large extent, of the welfare of others, which is, of course, only another aspect of the same desire. Only when he had himself voluntarily undertaken liabilities, was he willing to recognize them; in that case his common sense taught him that, without mutuality, he could expect no similar recognition from others. Hence the completeness of the English Law of Contract; hence also the limitations of the English Law of Torts and English Family law. Hence also the unique freedom of testation in English Law.

But there can be little doubt that another and very strong reason for the Englishman's respect for his law is the fact that he regards it, and very rightly, as his own production. The writer trusts that he has given due consideration to the arguments of those who maintain the authoritarian view of law, as a rule of conduct imposed from above rather than worked out from below; and particularly he has not failed to study one of the latest and ablest presentations of the authoritarian theory in the work of the late Royall Professor.10 But still, he is prepared to maintain that, so far as English Civil Law is concerned, the facts are against the authoritarian view, with small and inconsiderable exceptions. Not to labour again the explanation as to the function of judicial precedents given in the preceding article,11 the writer may be permitted to state that the chief example relied upon by Professor Gray 12 in support of his contention that the function of the judges is not (as in the orthodox view) declaratory, but creative, seems to him a little disingenuous. In form, no doubt, the court in Pells v. Brown merely decided that that peculiar kind of future limitation known as an executory interest could not be destroyed by a common recovery, when it was intended to work in defeasance of a fee simple. And equally, no doubt, it is unlikely that testators who were not lawyers had ever considered the question in that form. But there is evidence that, long before Pells v. Brown was decided, executory devises of the kind occurring in that case had been in familiar use; and though, immediately after the passing of the Statute of Uses 13 the Common Law Courts (which had not before had an opportunity of pronouncing upon them) had expressed an opinion adverse to their validity, that opinion had, somehow, been clearly overcome. The question in Pells v. Brown was then, substantially, whether by allowing the fiction of a common recovery to be extended to a purpose for which it was not introduced,14 a well-established practice should be, in effect, invalidated. Professor Gray appears also to have considered

10 NATURE AND SOURCES OF THE LAW. By John Chipman Gray (Columbia University Lectures), 1909.

30 Harv. L. Rev. 17-19. 13 Op. cit., pp. 223–26. 13 Prior of Smithfield's Case, Dyer, 33 (1536).

14 In fact the introduction of the common recovery as a bar of an estate tail seems itself to show even the impotence of an Act of Parliament in the face of well-established custom.

with less attention than it deserves the important fact that the English Parliament, by virtue of its representative character, succeeded rapidly, even in the earliest days of its existence, in establishing, in the name of the 'good customs of the realm,' a decided check on judicial activity, though that activity had been in familiar exercise for more than a century.

But if the writer is unable to accept Professor Gray's view of the origin of law, at any rate of English law, he is the more anxious to express his indebtedness to the late Royall Professor for the admirable explanation of the nature of the State, which, whatever be the origin of law, always plays, in civilized communities, a profoundly important part in its administration. The expression State machinery' is familiar enough; but few writers, at least few juristic writers, have, so clearly and briefly as the late Royall Professor,18 brought out the essentially 'inhuman' character of that organization. Man has an ideal or mystical side to his nature, which causes him, like Israel of old, to worship the work of his own hands; and the tendency is not confined to physical productions — it would be far less dangerous if it were. Thus the notion of the 'Sovereign State,' like the irresistible powers of steam and electricity, may become a profound source of danger to the community which has allowed it to be seized by unscrupulous hands; and so the Austinian view of the State, as the source of all law, is not only contrary to obvious historical facts, but dangerous to the last degree. We know, of course, that the State is the source of a great deal of law, or, to speak more exactly, that a great deal of law is the product of those individuals who have, for the time being, got hold of the State machinery. But some of us are by no means convinced of the superiority of that law to the law made by the community itself, and count it a danger to the community whose theory of the State places no limits upon the creation of State law.

It is, therefore, as the writer regards it, no unmixed evil that English law is so chary of invoking the conception of the State, and displays such a limited capacity for feigning, or, if the expression be preferred, recognizing, personality. Doubtless there are incon

.

15 Op. cit., Ch. III. The influence of traditional language on thought seems, however, to be illustrated even in the argument of Professor Gray, who, after describing the State as 'merely a device,' speaks, almost in the same breath, of 'the men and women who compose it' (p. 67).

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