ods of its formulation. There is, in fact, a far greater resemblance between the Register of Writs and the Prætor's Edict, with its list of formula, than between the Edict and the vague processes of the early days of Equity. But another almost equally important fact in the history of English Law is not so well known; and it deserves to be mentioned here, as it serves to clear away an unnecessary complication, and to reduce to uniformity a process which has hitherto been regarded as manifesting itself in two somewhat inconsistent ways. It is common to assume, that the special branch of English Law known as 'Equity' did not make its appearance until after the common law, as embodied in the Register of Writs, had virtually ceased to be an expanding system, owing either to the restraints imposed on the invention of new writs by the jealousy of the newly-created Parliament, or to the growing conservatism of the common law judges. This is a natural assumption from the fact that the separate jurisdiction of the Chancellor became prominent just at the time when the Register of Writs (despite the well-known provision of the Statute of Westminster the Second 31) was practically closed. But recent researches 32 seem to place it almost beyond dispute that, at a considerably earlier date, not merely the grievances, but even the remedies, which we have been wont to associate peculiarly with the Court of Chancery, were familiar to the common law tribunals, and, what is more, that they were dealt with and administered, not only in Westminster Hall, but also on the local circuits. The truth appears to be, that English 'common law’ and English 'equity' had almost precisely similar origins, in the claim of the King's prerogative to redress the grievances of his subjects, and that they differed mainly, if not entirely, in the fact, that the older tribunals, having adopted a special form of procedure for dealing with these grievances, and offered their remedies 31 13 EDW. I, st. I, c. 24 (2). Of course the importance of the action of 'Case,' introduced by this provision, must not be underestimated. (As to this, see the author's SHORT HISTORY OF ENGLISH LAW, at pp. 137-45.) Still it is clear that, for some reason, this provision had only a limited operation. * See especially Mr. Bolland's edition of THE EYRE OF KENT (in 1313-14) for the Selden Society (Vols. 24, 27, 29), especially Vol. 27, pp. xxi-xxx, and the articles of Dr. Hazeltine, 'Early History of English Equity,' in Essays in Legal HISTORY, Oxford, 1913, and Professor G. B. Adams, 'Origin of English Equity,' 16 COL. L. REV. 87. See also Mr. Bolland's SELECT BILLS IN EYRE, also in S. S. series (Vol. 30). on these terms as a matter of right, rejected other forms of procedure (and, almost inevitably, therefore, all grievances which were not capable of being dealt with by that procedure), while the Chancellor made a new and vigorous, but discretionary,33 use of the rejected grievances and others of a similar nature, and thus rapidly built up a large supplementary jurisdiction. Is there any real reason to doubt that, in framing the rules of Equity, the Chancellors relied mainly on the materials which had previously served for the formulation of the common law? The Chancellors did not, of course, underestimate the value of popular catchwords, such as 'grace,' 'conscience,' and 'equity' - i. e., equality; but these served them rather as ideals than as practical guides. It may be that we owe one or two equitable doctrines (e. g., the doctrine of 'clogging the equity of redemption' 34) to the Canon Law, or to the Roman Law.35 Most of the early Chancellors had a bowing acquaintance, at least, with one or other of these systems. But can any one doubt that, under such vague expressions as the 'Law of Nature' or the 'principles of Equity,' what the early Chancellors really did was to sanction and enforce rules of conduct which had already established themselves among the better members of the community -that when, for example, they began to enforce uses or trusts, they merely bound the lower type of citizen to do what every decent citizen already felt himself bound to do, or that, when they laid down the famous maxim: 'once a mortgage, always a mortgage,' they merely formulated a principle upon which all reasonable mortgagees, as distinguished from sharks of the type of Trapbois, already acted? Is this a suggestion which belittles the high office of the judge as an expounder of law, or which the judges themselves would repudiate? To the latter question, the frequent appeals of the common law judges to the conduct of the 'average reasonable citizen' in fixing the standard of negligence, or of the Equity judges to the 'man of ordinary prudence' in the administration of trusts 36 "The principle that the common law is ex debito justitiæ, while Equity is ex gratiâ, is, perhaps, the most fundamental distinction between common law and equity still subsisting. "The connection was probably through the Usury Laws. 15 A good example is the well-known equitable doctrine of 'marshalling,' which is the Roman subrogatio. See the well-known dictum of Lord Watson, in Learoyd v. Whiteley, L. R. 12 would seem to furnish a negative reply; even if the famous doctrine of the universal competence and completeness of the common law, above referred to, were not itself a negative answer. The former will hardly be answered in the affirmative by any competent critic who ponders for a little the difficulties which surround the delicate task of rightly interpreting that subtle but all-important thing, public opinion. Assuredly, it is no easy task for a judge, when confronted with a case for which there is no precedent, to formulate a decision which shall commend itself to the sense of justice - not merely of the litigants before him (who may be considered to be prejudiced), but to the right-thinking members of the community who may be litigants in the future. And, in performing this difficult task, can he have any better guide than the rules of conduct which those right-thinking citizens have already adopted as the result of that subtle process of experiment in the laboratory of life which we call 'practical experience'? A judge must indeed have confidence in his own wisdom beyond the measure of ordinary modesty who will deliberately defy such a guide. That would be to apply arbitrium, not interpretatio. If the suggestion thus imperfectly stated be at all near the truth, the scope of judiciary law (perhaps even of parliamentary legislation, though that is another story 37) is fairly indicated. A tribunal is bound to follow precedent where it is clear and authoritative, at least unless the precedent is manifestly founded on a mistake, or the conditions have changed; because certainty is even more important in the administration of justice than wisdom. Perhaps the most remarkable testimony to this truth which comparatively recent years have produced is the changed attitude of the House of Lords toward its own former judgments. Down to the middle of the nineteenth century,38 the House declined to be bound by judicial decisions, even by its own. The doctrine is now the other way; and the House of Lords has thus avowedly given A. C. 727, 733 (1887), and the earlier dictum of Lord Blackburn in Speight v. Gaunt, L. R. 9 A. C. 1, 19 (1883). 37 The writer has suggested grounds for thinking that the limits of parliamentary legislation in civil law are hardly different, in his SHORT HISTORY OF POLITICS (Dent), pp. 128-29. 38 The critical decisions are Thellusson v. Rendlesham, 7 H. L. Cas. 429 (1859); Att.-G. 1. Dean and Canons of Windsor, 8 H. L. Cas. 369 (1860); and Beamish v. Beamish, 9 H. L. Cas. 274 (1861). up 39 its claim to combine its judicial and legislative functions in a single session. But that fact does not relieve the House of Lords (or any other tribunal) from the duty of deciding a case, on the ground of want of precedent or statutory provision. Such a refusal would be a gross breach of duty. In such a case the Court turns, as has been suggested, to the deep well, not of 'public opinion' in the speculative sense, but of public conviction, as evidenced by the conduct of the most upright and experienced members of the community. To appeal to an ideal above or beyond this standard, is to run the risk of creating a precedent which will be regarded with dişlike, as 'crotchetty,' or 'unpractical'; to act in deliberate defiance of this standard is to invite a reaction which, in its desire to abolish an unpopular decision, may proceed to disastrous lengths. Having thus considered some of the chief characteristics of English Civil Law, we may proceed to ask ourselves how far they indicate and satisfy the scope and functions of law generally. Edward Jenks. LONDON, ENGLAND. (To be continued) "The constitutional importance of the change has hardly received the notice it deserves. The legislative functions of the Great Council have never been formally abolished. Were they finally abandoned in Beamish v. Beamish? STATE LIABILITY FOR TORT UCH ink has flowed and many hot words have been spoken concerning the iniquity of states which break their contracts, and particularly of those which repudiate their bonds. The matter of state liability for tort has attracted comparatively little interest.1 Circumstances have not pushed it to the front until recently. Twenty or thirty years ago our State and Federal governments discharged few functions of an industrial nature. The citizen might occasionally enter into business relations by lending them money, but he rarely met them in commercial competition. Now the United States is operating a great canal, building a railroad in Alaska, competing with the express companies, threatening to take over the telephone and telegraph systems, and about to launch a merchant marine. Most State administrations have similarly extended their activities. With every advance of the sovereign into industrial fields, determination and enforcement of its non-contractual liabilities become more and more important. "The King can do no wrong" is a preliminary stumbling-block. These words give rise to a common belief that the government cannot be guilty of a tort. For several reasons this idea must be dismissed. The maxim is pointless where there is no king. Then, like all maxims, it is an elusive creature, worth much less than face value. Blackstone deals with it as a smug statement that the royal conscience is sensitive and will not suffer wrong to go unredressed.3 Finally, there are plenty of decisions to the point that a citizen may acquire legal rights against a sovereign by reason of the latter's tort.4 1 For convenience, the word "state" is not capitalized herein except where it refers to one of the United States. The writer has also used certain other words in fixed and perhaps arbitrary senses. A state is said to be "liable" to any individual who has a legal right against it; to be "responsible" or "answerable" to him only if, in addition to the right, he has an adequate remedy. * Langford v. United States, 101 U. S. 341 (1879). BL. COMM., bk. 3, ch. 17. • The Siren, 7 Wall. (U. S.) 152 (1868); Metz v. Soule, etc. Co., 40 Iowa 236 (1875); Coster v. Mayor, etc. of Albany, 43 N. Y. 399, 407 (1871); and see Goreley v. Butler, 147 Mass. 8, 10, 16 N. E. 734 (1888). That American jurists were getting this idea into their heads as early as 1855 ap |