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Benet, J.: The term discretion implies the absence of a hard and fast rule.) The establishment of a clearly defined rule would be the end of discretion. And yet discretion should not be a word for arbitrary will or unstable caprice.

HAYWOOD V. COPE, 25 Beav. (Eng.) 140, 151.

Romilly, M. R.: It is most important that the profession, and those who have to advise in reference to this subject should understand the rule which is adopted in this and the other Courts, which is, that the discretion of the courts must be exercised according to fixed and settled rules; you can not exercise a discretion by merely considering what, between the parties, would be fair to be done; what one person may consider fair, another person may consider

very unfair;(you must have some settled rule and principle upon which to determine how that discretion is to be exercised.)

Four propositions may be laid down with reference to the exercise of discretion: (1) Whether or not a matter is one for law or for discretion is settled by law, and the court has no power to put it in the one category or the other at pleasure. A court has no discretion to apply the law or not as it sees fit. (2) Where discretion is conferred, it must really be exercised as such; the court can not act oppressively or arbitrarily under pretence of exercising discretion. Such arbitrary or oppressive action under color of exercising discretion is called abuse of discretion., (3) (If discretion reposed in a court or judge is in fact exercised as such, the manner of its exercise will not be reviewed.) (4) But if the discretion is abused, the abuse may be reviewed and corrected by a higher tribunal.) (Judicial law-making refers to decision by judges of cases of a novel character, not governed or imperfectly governed by existing rules of law, whereby new rules arise.) It is a survival from times when there was little or no legislation, and when legislative and judicial functions were undifferentiated and confused. Its scope and importance in our system of law are continually diminishing. Like judicial discretion, this power is not arbitrary and unrestricted, but must be exercised along well-settled lines. The chief agent in judicial law-making is analogy, and the process consists in choosing between competing analogies of existing rules and selecting that which appears most in harmony with the rest of the legal system and most consonant with reason and justice.


The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law

was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.) Let

us take a short view of them all.

1.(Words are generally to be understood in their usual and most known signification; not 'so much regarding the propriety of grammar, as their general and popular use.) Thus the law mentioned by Puffendorf which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia and the heirs of her body, being Protestants," it becomes necessary to call in the assistance of lawyers to ascertain the precise idea of the words "heirs of her body," which, in a legal sense, comprise only certain of her lineal descendants.

2.(If words happen to be still dubious, we may establish their meaning from the context, with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate.) Thus the proeme, or preamble, is often called in to help the construction of an act of Parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is; and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject matter, words are always to be understood as having a regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.) Thus, when a law of our Edward III forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but, when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where the words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon who opened the vein of a person that fell down in the street in a fit.

5. (But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.) For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise ascribed to Herennius. There was a law that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong entirely to those who stayed in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither stayed in the ship on that account, nor contributed anything to its preservation.

From this method of interpreting laws by the reason of them, arises what we call equity, which is thus defined by Grotius: "the correction of that wherein the law (by reason of its universality) is deficient." For, since in laws all cases can not be foreseen or expressed, it is necessary that, when the general decrees of the law. come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, lex non exacte definit, sed arbitrio boni viri permittit.

SHARSWOOD'S NOTE to the foregoing passage.

What the learned commentator here says is certainly inaccurate, if it leads to the supposition that any other rules of interpretation

are applied to statutes in courts of equity than in courts of law. On the contrary, herein equity follows the law. . . What the commentator does mean, perhaps, is what is generally termed the equity of a statute, which is in reality a compendious mode of expressing his fifth rule of interpretation. Those cases are said to be within the equity of a statute which, though not directly comprehended by its language, are nevertheless within the intention of the lawgiver, reached by its reason and spirit.


We have defined a principle of law as a principle recognized and acted upon by the State in the administration of justice. It follows. that the validity of a legal principle is entirely independent of its truth. It is a principle of law, not because it is true, but because it is accepted and acted upon by the State as true. That two and two make five is open to grave objections as a principle of mathematics, but may be a perfectly valid rule of law. As Hobbes says: Authoritas non veritas facit legem. Nor does the existence of a legal principle imply or involve any belief in its truth. To accept a principle as true for the purposes of action is a different thing from believing it to be true; for though a principle be not true, it may be expedient to act upon it as if it were.

Hence a divergence of law from truth and fact is in all cases possible, and in many cases expedient, and in all legal systems such a divergence exists to a very great extent. We have ever to distinguish that which is in deed and in truth from that which is in law. Negligence in fact is not necessarily negligence in law and vice versa. Fraud in fact may not be fraud in law; malice in law may not be malice in fact.

Since the aim of the administration of justice is the maintenance or protection of rights, it follows that among the most important of legal principles must be those defining rights. Now the law may recognize as a right that which is not so in truth, or may fail to recognize one which in truth exists. Hence we have to distinguish between rights in fact and rights in law, that is to say, between natural rights and legal rights. And similarly of wrongs, duties, and liabilities.

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In order to attain its end, the law recognizes or defines certain powers or capacities in persons of influencing the actions of others. The courts give effect to these powers or capacities of influence by protecting those in whom they reside in the exercise of them, or by enforcing them against those against whom they are conferred, or by vindicating them by some form of redress when they are interfered with. These powers or capacities of influence are called rights.


Duty is the basis of Right. That is to say, parties who have rights, or parties who are invested with rights, have rights to acts or forbearances enjoined by the sovereign upon other parties.

Or (in other words) parties invested with rights are invested with rights, because other parties are bound by the command of the sovereign, to do or perform acts; or to forbear or abstain from acts.

In short, the term 'right' and the term 'relative duty' signify the same notion considered from different aspects. Every right supposes distinct parties: A party commanded by the sovereign to do or to forbear, and a party towards whom he is commanded to do or to forbear. The party to whom the sovereign expresses or intimates the command, is said to lie under a duty: that is to say a relative duty. The party towards whom he is commanded to do or to forbear, is said to have a right to the acts or forbearances in question.


What then is a 'legal right?' But first, what is a right generally? (It is one man's capacity of influencing the acts of another by means, not of his own strength, but of the opinion or the force of society.) When a man is said to have a right to do anything, or over anything, or to be treated in a particular manner, what is meant is that public opinion would see him do the act, or make use of the thing, or be treated in that particular way, with approbation, or at least with acquiescence; but would reprobate the conduct of anyone who should prevent him from doing the act, or making use of the thing, or should fail to treat him in that particular way.

A 'right' is thus the name given to the advantage a man has when he is so circumstanced that a general feeling of approval, or at least of acquiescence, results when he does or abstains from doing certain acts, and when other people act or forbear to act in

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