Re: Residency
Posted by: "Ed Salvage"
enlaw98@yahoo.com enlaw98
Sun Jan 20, 2008 5:31 pm (PST)
Funny, but I just got this from a friend, but as now I
hage not read it yet.
Good reading from the 1800.
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2001&chapter=138145&layout=html&Itemid=27CHAPTER II.
LEGAL FICTIONS.
When primitive law has once been embodied in a Code,
there is an end to what may be called its spontaneous
development. Henceforward the changes effected in it,
if effected at all, are effected deliberately and from
without. It is impossible to suppose that the customs
of any race or tribe remained unaltered during the
whole of the long—in some instances the
immense—interval between their declaration by a
patriarchal monarch and their publication in writing.
It would be unsafe too to affirm that no part of the
alteration was effected deliberately. But from the
little we know of the progress of law during this
period, we are justified in assuming that set purpose
had the very smallest share in producing change. Such
innovations on the earliest usages as disclose
themselves appear to have been dictated by feelings
and modes of thought which, under our present mental
conditions, we are unable to comprehend. A new era
begins, however, with the Codes. Wherever, after this
epoch, we trace the course of legal modification we
are able to attribute it to the conscious desire of
improvement, or at all events of compassing objects
other than those which were aimed at in the primitive
times.
It may seem at first sight that no general
propositions worth trusting can be elicited from the
history of legal systems subsequent to the codes. The
field is too vast. We cannot be sure that we have
included a sufficient number of phenomena in our
observations, or that we accurately understand those
which we have observed. But the undertaking will be
seen to be more feasible, if we consider that after
the epoch of codes the distinction between stationary
and progressive societies begins to make itself felt.
It is only with the progressive societies that we are
concerned, and nothing is more remarkable than their
extreme fewness. In spite of overwhelming evidence, it
is most difficult for a citizen of western Europe to
bring thoroughly home to himself the truth that the
civilisation which surrounds him is a rare exception
in the history of the world. The tone of thought
common among us, all our hopes, fears, and
speculations, would be materially affected, if we had
vividly before us the relation of the progressive
races to the totality of human life. It is
indisputable that much the greatest part of mankind
has never shown a particle of desire that its civil
institutions should be improved since the moment when
external completeness was first given to them by their
embodiment in some permanent record. One set of usages
has occasionally been violently overthrown and
superseded by another; here and there a primitive
code, pretending to a supernatural origin, has been
greatly extended, and distorted into the most
surprising forms, by the perversity of sacerdotal
commentators; but, except in a small section of the
world, there has been nothing like the gradual
amelioration of a legal system. There has been
material civilisation, but, instead of the
civilisation expanding the law, the law has limited
the civilisation. The study of races in their
primitive condition affords us some clue to the point
at which the development of certain societies has
stopped. We can see that Brahminical India has not
passed beyond a stage which occurs in the history of
all the families of mankind, the stage at which a rule
of law is not yet discriminated from a rule of
religion. The members of such a society consider that
the transgression of a religious ordinance should be
punished by civil penalties, and that the violation of
a civil duty exposes the delinquent to divine
correction. In China this point has been past, but
progress seems to have been there arrested, because
the civil laws are coextensive with all the ideas of
which the race is capable. The difference between the
stationary and progressive societies is, however, one
of the great secrets which inquiry has yet to
penetrate. Among partial explanations of it I venture
to place the considerations urged at the end of the
last chapter. It may further be remarked that no one
is likely to succeed in the investigation who does not
clearly realise that the stationary condition of the
human race is the rule, the progressive the exception.
And another indispensable condition of success is an
accurate knowledge of Roman law in all its principal
stages. The Roman jurisprudence has the longest known
history of any set of human institutions. The
character of all the changes which it underwent is
tolerably well ascertained. From its commencement to
its close, it was progressively modified for the
better, or for what the authors of the modification
conceived to be the better, and the course of
improvement was continued through periods at which all
the rest of human thought and action materially
slackened its space, and repeatedly threatened to
settle down into stagnation.
I confine myself in what follows to the progressive
societies. With respect to them it may be laid down
that social necessities and social opinion are always
more or less in advance of Law. We may come
indefinitely near to the closing of the gap between
them, but it has a perpetual tendency to reopen. Law
is stable; the societies we are speaking of are
progressive. The greater or less happiness of a people
depends on the degree of promptitude with which the
gulf is narrowed.
A general proposition of some value may be advanced
with respect to the agencies by which Law is brought
into harmony with society. These instrumentalities
seem to me to be three in number, Legal Fictions,
Equity, and Legislation. Their historical order is
that in which I have placed them. Sometimes two of
them will be seen operating together, and there are
legal systems which have escaped the influence of one
or other of them. But I know of no instance in which
the order of their appearance has been changed or
inverted. The early history of one of them, Equity, is
universally obscure, and hence it may be thought by
some that certain isolated statutes, reformatory of
the civil law, are older than any equitable
jurisdiction. My own belief is that remedial Equity is
everywhere older than remedial Legislation; but,
should this be not strictly true, it would only be
necessary to limit the proposition respecting their
order of sequence to the periods at which they
exercise a sustained and substantial influence in
transforming the original law.
I employ the word “fiction” in a sense considerably
wider than that in which English lawyers are
accustomed to use it, and with a meaning much more
extensive than that which belonged to the Roman
“fictiones.” Fictio, in old Roman law, is properly a
term of pleading, and signifies a false averment on
the part of the plaintiff which the defendant was not
allowed to traverse; such, for example, as an averment
that the plaintiff was a Roman citizen when in truth
he was a foreigner. The object of these “fictiones”
was, of course, to give jurisdiction, and they
therefore strongly resembled the allegations in the
writs of the English Queen’s Bench and Exchequer, by
which those Courts contrived to usurp the jurisdiction
of the Common Pleas:—the allegation that the defendant
was in custody of the king’s marshal, or that the
plaintiff was the king’s debtor, and could not pay his
debt by reason of the defendant’s default. But now I
employ the expression “Legal Fiction” to signify any
assumption which conceals, or affects to conceal, the
fact that a rule of law has undergone alteration, its
letter remaining unchanged, its operation being
modified. The words, therefore, include the instances
of fictions which I have cited from the English and
Roman law, but they embrace much more, for I should
speak both of the English Case-law and of the Roman
Responsa Prudentum as resting on fictions. Both these
examples will be examined presently. The fact is in
both cases that the law has been wholly changed; the
fiction is that it remains what it always was. It is
not difficult to understand why fictions in all their
forms are particularly congenial to the infancy of
society. They satisfy the desire for improvement,
which is not quite wanting, at the same time that they
do not offend the superstitious disrelish for change
which is always present. At a particular stage of
social progress they are invaluable expedients for
overcoming the rigidity of law and, indeed, without
one of them, the Fiction of Adoption which permits the
family tie to be artificially created, it is difficult
to understand how society would ever have escaped from
its swaddling-clothes, and taken its first steps
towards civilisation. We must, therefore, not suffer
ourselves to be affected by the ridicule which Bentham
pours on legal fictions wherever he meets them. To
revile them as merely fraudulent is to betray
ignorance of their peculiar office in the historical
development of law. But at the same time it would be
equally foolish to agree with those theorists who,
discerning that fictions have had their uses, argue
that they ought to be stereotyped in our system. There
are several Fictions still exercising powerful
influence on English jurisprudence which could not be
discarded without a severe shock to the ideas, and
considerable change in the language, of English
practitioners; but there can be no doubt of the
general truth that it is unworthy of us to effect an
admittedly beneficial object by so rude a device as a
legal fiction. I cannot admit any anomaly to be
innocent, which makes the law either more difficult to
understand or harder to arrange in harmonious order.
Now, among other disadvantages, legal fictions are the
greatest of obstacles to symmetrical classification.
The rule of law remains sticking in the system, but it
is a mere shell. It has been long ago undermined, and
a new rule hides itself under its cover. Hence there
is at once a difficulty in knowing whether the rule
which is actually operative should be classed in its
true or in its apparent place, and minds of different
casts will differ as to the branch of the alternative
which ought to be selected. If the English law is ever
to assume an orderly distribution, it will be
necessary to prune away the legal fictions which, in
spite of some recent legislative improvements, are
still abundant in it.
The next instrumentality by which the adaptation of
law to social wants is carried on I call Equity,
meaning by that word any body of rules existing by the
side of the original civil law, founded on distinct
principles and claiming incidentally to supersede the
civil law in virtue of a superior sanctity inherent in
those principles. The Equity whether of the Roman
Prætors or of the English Chancellors, differs from
the Fictions which in each case preceded it, in that
the interference with law is open and avowed. On the
other hand, it differs from Legislation, the agent of
legal improvement which comes after it, in that its
claim to authority is grounded, not on the prerogative
of any external person or body, not even on that of
the magistrate who enunciates it, but on the special
nature of its principles, to which it is alleged that
all law ought to conform. The very conception of a set
of principles, invested with a higher sacredness than
those of the original law and demanding application
independently of the consent of any external body,
belongs to a much more advanced stage of thought than
that to which legal fictions originally suggested
themselves.
Legislation, the enactments of a legislature which,
whether it take the form of an autocratic prince or of
a parliamentary assembly, is the assumed organ of the
entire society, is the last of the ameliorating
instrumentalities. It differs from Legal Fictions just
as Equity differs from them, and it is also
distinguished from Equity, as deriving its authority
from an external body or person. Its obligatory force
is independent of its principles. The legislature,
whatever be the actual restraints imposed on it by
public opinion, is in theory empowered to impose what
obligations it pleases on the members of the
community. There is nothing to prevent its legislating
in the wantonness of caprice. Legislation may be
dictated by equity, if that last word be used to
indicate some standard of right and wrong to which its
enactments happen to be adjusted; but then these
enactments are indebted for their binding force to the
authority of the legislature, and not to that of the
principles on which the legislature acted; and thus
they differ from rules of Equity, in the technical
sense of the word, which pretend to a paramount
sacredness entitling them at once to the recognition
of the courts even without the concurrence of prince
or parliamentary assembly. It is the more necessary to
note these differences because a student of Bentham
would be apt to confound Fictions, Equity, and Statute
law under the single head of legislation. They all, he
would say, involve law-making; they differ only in
respect of the machinery by which the new law is
produced. That is perfectly true, and we must never
forget it; but it furnishes no reason why we should
deprive our selves of so convenient a term as
Legislation in the special sense. Legislation and
Equity are disjoined in the popular mind and in the
minds of most lawyers; and it will never do to neglect
the distinction between them, however conventional,
when important practical consequences follow from it.
It would be easy to select from almost any regularly
developed body of rules examples of legal fictions,
which at once betray their true character to the
modern observer. In the two instances which I proceed
to consider, the nature of the expedient employed is
not so readily detected. The first authors of these
fictions did not perhaps intend to innovate, certainly
did not wish to be suspected of innovating. There are,
moreover, and always have been, persons who refuse to
see any fiction in the process, and conventional
language bears out their refusal. No examples,
therefore, can be better calculated to illustrate the
wide diffusion of legal fictions, and the efficiency
with which they perform their two-fold office of
transforming a system of laws and of concealing the
transformation.
We in England are well accustomed to the extension,
modification, and improvement of law by a machinery
which, in theory, is incapable of altering one jot or
one line of existing jurisprudence. The process by
which this virtual legislation is effected is not so
much insensible as unacknowledged. With respect to
that great portion of our legal system which is
enshrined in cases and recorded in law reports, we
habitually employ a double language, and entertain, as
it would appear, a double and inconsistent set of
ideas. When a group of facts come before an English
Court for adjudication, the whole course of the
discussion between the judge and the advocate assumes
that no question is, or can be, raised which will call
for the application of any principles but old ones, or
of any distinctions but such as have long since been
allowed. It is taken absolutely for granted that there
is somewhere a rule of known law which will cover the
facts of the dispute now litigated, and that, if such
a rule be not discovered, it is only that the
necessary patience, knowledge or acumen, is not
forthcoming to detect it. Yet the moment the judgment
has been rendered and reported, we slide unconsciously
or unavowedly into a new language and a new train of
thought. We now admit that the new decision has
modified the law. The rules applicable have, to use
the very inaccurate expression sometimes employed,
become more elastic. In fact they have been changed. A
clear addition has been made to the precedents, and
the canon of law elicited by comparing the precedents
is not the same with that which would have been
obtained if the series of cases had been curtailed by
a single example. The fact that the old rule has been
repealed, and that a new one has replaced it, eludes
us, because we are not in the habit of throwing into
precise language the legal formulas which we derive
from the precedents, so that a change in their tenor
is not easily detected unless it is violent and
glaring. I shall not now pause to consider at length
the causes which have led English lawyers to acquiesce
in these curious anomalies. Probably it will be found
that originally it was the received doctrine that
somewhere, in nubibus or in gremio magistratuum, there
existed a complete, coherent, symmetrical body of
English law, of an amplitude sufficient to furnish
principles which would apply to any conceivable
combination of circumstances. The theory was at first
much more thoroughly believed in than it is now, and
indeed it may have had a better foundation. The judges
of the thirteenth century may have really had at their
command a mine of law unrevealed to the bar and to the
lay-public, for there is some reason for suspecting
that in secret they borrowed freely, though not always
wisely, from current compendia of the Roman and Canon
laws. But that storehouse was closed as soon as the
points decided at Westminster Hall became numerous
enough to supply a basis for a substantive system of
jurisprudence; and now for centuries English
practitioners have so expressed themselves as to
convey the paradoxical proposition that, except by
Equity and Statute law, nothing has been added to the
basis since it was first constituted. We do not admit
that our tribunals legislate; we imply that they have
never legislated; and yet we maintain that the rules
of the English common law, with some assistance from
the Court of Chancery and from Parliament, are
coextensive with the complicated interests of modern
society.
A body of law bearing a very close and very
instructive resemblance to our case-law in those
particulars which I have noticed, was known to the
Romans under the name of the Responsa Prudentum, the
“answers of the learned in the law.” The form of these
Responses varied a good deal at different periods of
the Roman jurisprudence, but throughout its whole
course they consisted of explanatory glosses on
authoritative written documents, and at first they
were exclusively collections of opinions
interpretative of the Twelve Tables. As with us, all
legal language adjusted itself to the assumption that
the text of the old Code remained unchanged. There was
the express rule. It overrode all glosses and
comments, and no one openly admitted that any
interpretation of it, however eminent the interpreter,
was safe from revision on appeal to the venerable
texts. Yet in point of fact, Books of Responses
bearing the names of leading jurisconsults obtained an
authority at least equal to that of our reported
cases, and constantly modified, extended, limited or
practically overruled the provisions of the Decemviral
law. The authors of the new jurisprudence during the
whole progress of its formation professed the most
sedulous respect for the letter of the Code. They were
merely explaining it, deciphering it, bringing out its
full meaning; but then, in the result, by piecing
texts together, by adjusting the law to states of fact
which actually presented themselves and by speculating
on its possible application to others which might
occur, by introducing principles of interpretation
derived from the exegesis of other written documents
which fell under their observation, they educed a vast
variety of canons which had never been dreamed of by
the compilers of the Twelve Tables and which were in
truth rarely or never to be found there. All these
treatises of the jurisconsults claimed respect on the
ground of their assumed conformity with the Code, but
their comparative authority depended on the reputation
of the particular jurisconsults who gave them to the
world. Any name of universally acknowledged greatness
clothed a Book of Responses with a binding force
hardly less than that which belonged to enactments of
the legislature; and such a book in its turn
constituted a new foundation on which a further body
of jurisprudence might rest. The Responses of the
early lawyers were not however published, in the
modern sense, by their author. They were recorded and
edited by his pupils, and were not therefore in all
probability arranged according to any scheme of
classification. The part of the students in these
publications must be carefully noted, because the
service they rendered to their teacher seems to have
been generally repaid by his sedulous attention to the
pupils’ education. The educational treatises called
Institutes or Commentaries, which are a later fruit of
the duty then recognised, are among the most
remarkable features of the Roman system. It was
apparently in these Institutional works, and not in
the books intended for trained lawyers, that the
jurisconsults gave to the public their classifications
and their proposals for modifying and improving the
technical phraseology.
In comparing the Roman Responsa Prudentum with their
nearest English counterpart, it must be carefully
borne in mind that the authority by which this part of
the Roman jurisprudence was expounded was not the
bench, but the bar. The decision of a Roman tribunal,
though conclusive in the particular case, had no
ulterior authority except such as was given by the
professional repute of the magistrate who happened to
be in office for the time. Properly speaking, there
was no institution at Rome during the republic
analogous to the English Bench, the Chambers of
Imperial Germany, or the Parliaments of Monarchical
France. There were magistrates indeed, invested with
momentous judicial functions in their several
departments, but the tenure of the magistracies was
but for a single year, so that they are much less
aptly compared to a permanent judicature than to a
cycle of offices briskly circulating among the leaders
of the bar. Much might be said on the origin of a
condition of things which looks to us like a startling
anomaly, but which was in fact much more congenial
than our own system to the spirit of ancient
societies, tending, as they always did, to split into
distinct orders which, how ever exclusive themselves,
tolerated no professional hierarchy above them.
It is remarkable that this system did not produce
certain effects which might on the whole have been
expected from it. It did not, for example, popularise
the Roman law,—it did not, as in some of the Greek
republics, lessen the effort of intellect required for
the mastery of the science, although its diffusion and
authoritative exposition were opposed by no artificial
barriers. On the contrary, if it had not been for the
operation of a separate set of causes, there were
strong probabilities that the Roman jurisprudence
would have become as minute, technical, and difficult
as any system which has since prevailed. Again, a
consequence which might still more naturally have been
looked for, does not appear at any time to have
exhibited itself. The jurisconsults, until the
liberties of Rome were overthrown, formed a class
which was quite undefined and must have fluctuated
greatly in numbers; nevertheless, there does not seem
to have existed a doubt as to the particular
individuals whose opinion, in their generation, was
conclusive on the cases submitted to them. The vivid
pictures of a leading jurisconsult’s daily practice
which abound in Latin literature—the clients from the
country flocking to his antechamber in the early
morning, and the students standing round with their
note-books to record the great lawyer’s replies—are
seldom or never identified at any given period with
more than one or two conspicuous names. Owing too to
the direct contact of the client and the advocate, the
Roman people itself seems to have been always alive to
the rise and fall of professional reputation, and
there is abundance of proof, more particularly in the
well-known oration of Cicero, “Pro Muræna,” that the
reverence of the commons for forensic success was apt
to be excessive rather than deficient.
We cannot doubt that the peculiarities which have been
noticed in the instrumentality by which the
development of the Roman law was first effected, were
the source of its characteristic excellence, its early
wealth in principles. The growth and exuberance of
principle was fostered, in part, by the competition
among the expositors of the law, an influence wholly
unknown where there exists a Bench, the depositaries
instrusted by king or commonwealth with the
prerogative of justice. But the chief agency, no
doubt, was the uncontrolled multiplication of cases
for legal decision. The state of facts which caused
genuine perplexity to a country client was not a whit
more entitled to form the basis of the jurisconsult’s
Response, or legal decision, than a set of
hypothetical circumstances propounded by an ingenious
pupil. All combinations of fact were on precisely the
same footing, whether they were real or imaginary. It
was nothing to the jurisconsult that his opinion was
overruled for the moment by the magistrate who
adjudicated on his client’s case, unless that
magistrate happened to rank above him in legal
knowledge or the esteem of his profession. I do not,
indeed, mean it to be inferred that he would wholly
omit to consider his client’s advantage, for the
client was in earlier times the great lawyer’s
constituent and at a later period his paymaster, but
the main road to the rewards of ambition lay through
the good opinion of his order, and it is obvious that
under such a system as I have been describing this was
much more likely to be secured by viewing each case as
an illustration of a great principle, or an
exemplification of a broad rule, than by merely
shaping it for an insulated forensic triumph. It is
evident that powerful influence must have been
exercised by the want of any distinct check on the
suggestion or invention of possible questions. Where
the data can be multiplied at pleasure, the facilities
for evolving a general rule are immensely increased.
As the law is administered among ourselves, the judge
cannot travel out of the sets of facts exhibited
before him or before his predecessors. Accordingly
each group of circumstances which is adjudicated upon
receives, to employ a Gallicism, a sort of
consecration. It acquires certain qualities which
distinguish it from every other case genuine or
hypothetical. But at Rome as I have attempted to
explain, there was nothing resembling a Bench or
Chamber of judges; and therefore no combination of
facts possessed any particular value more than
another. When a difficulty came for opinion before the
jurisconsult, there was nothing to prevent a person
endowed with a nice perception of analogy from at once
proceeding to adduce and consider an entire class of
supposed questions with which a particular feature
connected it. Whatever were the practical advice given
to the client, the responsum treasured up in the
notebooks of listening pupils would doubtless
contemplate the circumstances as governed by a great
principle, or included in a sweeping rule. Nothing
like this has ever been possible among ourselves, and
it should be acknowledged that in many criticisms
passed on the English law the manner in which it has
been enunciated seems to have been lost sight of. The
hesitation of our courts in declaring principles may
be much more reasonably attributed to the comparative
scantiness of our precedents, voluminous as they
appear to him who is acquainted with no other system,
than to the temper of our judges. It is true that in
the wealth of legal principle we are considerably
poorer than several modern European nations. But they,
it must be remembered, took the Roman jurisprudence
for the foundation of their civil institutions. They
built the débris of the Roman law into their walls;
but in the materials and workmanship of the residue
there is not much which distinguishes it favourably
from the structure erected by the English judicature.
The period of Roman freedom was the period during
which the stamp of a distinctive character was
impressed on the Roman jurisprudence; and through all
the earlier part of it, it was by the Responses of the
jurisconsults that the development of the law was
mainly carried on. But as we approach the fall of the
republic there are signs that the Responses are
assuming a form which must have been fatal to their
farther expansion. They are becoming systematised and
reduced into compendia. Q. Mucius Scævola, the
Pontifex, is said to have published a manual of the
entire Civil Law, and there are traces in the writings
of Cicero of growing disrelish for the old methods, as
compared with the more active instruments of legal
innovation. Other agencies had in fact by this time
been brought to bear on the law. The Edict, or annual
proclamation of the Prætor, had risen into credit as
the principal engine of law reform, and L. Cornelius
Sylla, by causing to be enacted the great group of
statutes called the Leges Corneliœ, had shown what
rapid and speedy improvements can be effected by
direct legislation. The final blow to the Responses
was dealt by Augustus, who limited to a few leading
jurisconsults the right of giving binding opinions on
cases submitted to them, a change which, though it
brings us nearer the ideas of the modern world, must
obviously have altered fundamentally the
characteristics of the legal profession and the nature
of its influence on Roman law. At a later period
another school of jurisconsults arose, the great
lights of jurisprudence for all time. But Ulpian and
Paulus, Gaius and Papinian, were not authors of
Responses. Their works were regular treatises on
particular departments of the law, more especially on
the Prætor’s Edict.
The Equity of the Romans and the Prætorian Edict by
which it was worked into their system, will be
considered in the next chapter. Of the Statute Law it
is only necessary to say that it was scanty during the
republic, but became very voluminous under the empire.
In the youth and infancy of a nation it is a rare
thing for the legislature to be called into action for
the general reform of private law. The cry of the
people is not for change in the laws, which are
usually valued above their real worth, but solely for
their pure, complete and easy administration; and
recourse to the legislative body is generally directed
to the removal of some great abuse, or the decision of
some incurable quarrel between classes or dynasties.
There seems in the minds of the Romans to have been
some association between the enactment of a large body
of statutes and the settlement of society after a
great civil commotion. Sylla signalised his
reconstitution of the republic by the Leges Corneliæ;
Julius Cæsar contemplated vast additions to the
Statute Law; Augustus caused to be passed the
all-important group of Leges Juliæ and among later
emperors the most active promulgators of constitutions
are princes who, like Constantine, have the concerns
of the world to readjust, The true period of Roman
Statute Law does not begin till the establishment of
the empire. The enactments of the emperors, clothed at
first in the pretence of popular sanction, but
afterwards emanating undisguisedly from the imperial
prerogative, extend in increasing massiveness from the
consolidation of Augustus’s power to the publication
of the Code of Justinian. It will be seen that even in
the reign of the second emperor a considerable
approximation is made to that condition of the law and
that mode of administering it with which we are all
familiar. A statute law and a limited board of
expositors have arisen into being; a permanent court
of appeal and a collection of approved commentaries
will very shortly be added; and thus we are brought
close on the ideas of our own day.
