Sir John W. Salmond

“ So considered, the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law—better in some respects than that which we obtain by way of legislation—but its defect is that, except in a very imperfect and indirect manner, its operation is irreversible. What it does, it does once for all. It cannot go back upon its footsteps, and do well what it has once done ill. ”

“ Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculum juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must. It has its source in the supreme will of the state, vindicating its supremacy by way of physical force in the last resort against the unconforming will of the individual. A man’s liability consists in those things which he must do or suffer, because he has already failed in doing what he ought. It is the ultimatum of the law. ”

“ Were human nature so constituted that a threat of burning all offenders alive would with certainty prevent all breaches of the law, then this would be the just and fitting penalty for all offences from high treason to petty larceny. So greatly, however, are men moved by the impulse of the moment, rather than by a rational estimate of future good and evil, and so ready are they to face any future evil which falls short of the inevitable, that the utmost rigour is sufficient only for the diminution of crime, not for the extinction of it. ”

“ On what principle are we to draw the line between gross negligence and slight? How can we thus elevate a distinction of degree into one of kind? Even were it possible to establish two or more standards, there seems no reason of justice or expediency for doing so. The single standard of English law is sufficient for all cases. Why should any man be required to show more care than is reasonable under the circumstances, or excused if he shows less? ”

“ The reply is that the Crown is not merely itself a part of the legislature, but a part without whose consent the legislature cannot exercise any fragment of its own power. No law passed by the two Houses of Parliament is operative unless the Crown consents to it. How, then, can the legislature control the executive? Can a man be subject to himself? A power over a person, which cannot be exercised without that person’s consent, is no power over him at all. A person is subordinate to a body of which he is himself a member, only if that body has power to act notwithstanding his dissent. ”

“ Given an efficient penal system, crime is too poor a bargain to commend itself, save in exceptional circumstances, to any except those who lack the self-control, the intelligence, the prudence, or the moral sentiments of the normal man. But apart from criminal law in its sterner aspects, and apart from that positive morality which is largely the product of it, crime is a profitable industry, which will flourish exceedingly, and be by no means left as a monopoly to the feebler and less efficient members of society. ”

“ Possession without ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realises itself. The two things tend mutually to coincide. Ownership strives to realise itself in possession, and possession endeavours to justify itself as ownership. The law of prescription determines the process by which, through the influence of time, possession without title ripens into ownership, and ownership without possession withers away and dies. ”

“ There is no logical impossibility in such a constitution, yet it would be clearly unalterable in law. That it would be amended in defiance of the law cannot be doubted, for a constitution which will not bend will sooner or later break. But all questions as to civil and supreme power are questions as to what is possible within, not without, the limits of the constitution. If there is no constitution which meets with due observance, there is no body politic, and the theory of political government is deprived of any subject-matter to which it can apply. ”

“ Thus a written agreement for the sale of land is in law nothing more than a contract, imposing upon the seller a personal obligation to execute a conveyance under seal, but not in itself amounting to a transfer of the ownership of the land. In equity, on the other hand, such an agreement amounts to an assignment. The equitable ownership of the land passes under it to the purchaser forthwith, and the vendor holds the legal ownership in trust for him. Similarly a contract to grant a legal lease or mortgage or servitude is itself the actual grant of an equitable lease, mortgage, or servitude. ”

“ If I kill a man in order to rob him, I desire and intend his death, even though I deeply regret, in his interests or in my own, the necessity of it. In the same way, the desire and intention of an end extend not merely to the means by which it is obtained, but to all necessary concomitants without which it cannot be obtained. If an anarchist, desiring to kill the emperor, throws a bomb into his carriage, knowing that if it explodes and kills him it will also kill others who are riding with him, the assassin both desires and intends to kill those others. ”

“ Public opinion is variable from day to day—dependent on the special circumstances of the individual case—not uniform as we pass from state to state—not uniform even throughout the population of the same state. International law, on the other hand, is a permanent, uniform system of settled rules, independent of the fickle breath of public approbation or censure—made and unmade by the express or implied agreements of sovereign governments, and not by the mere opinions and prejudices which for the moment are in public favour. ”

“ A perfect duty, on the other hand, is one which a man not merely ought to perform, but may be justly compelled to perform. The duty to give alms to the poor is imperfect; that of paying one’s debts is perfect. Perfect duties pertain to the sphere of justice; imperfect to that of benevolence. The distinction is not equivalent to that between legal duties and those which are merely moral. A duty may be a perfect duty of justice, although the actual legal system takes no notice of it; and conversely an imperfect duty of benevolence may be unjustly made by law the subject of compulsion. ”

“ What the court thinks of the matter is nothing to the point. The whole procedure seems designed to take away from the tribunals the responsibility of investigating the truth, and to cast this burden upon providence or fate. Only gradually and reluctantly did our law attain to the conclusion that there is no such royal road in the administration of justice, that the heavens are silent, that the battle goes to the strong, that oaths are naught, and that there is no just substitute for the laborious investigation of the truth of things at the mouths of parties and witnesses. ”

“ Punishment prevents offences by destroying this conflict of interests to which they owe their origin—by making all deeds which are injurious to others injurious also to the doers of them—by making every offence, in the words of Locke, “an ill bargain to the offender.” Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of the doer of it. The purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things. ”

“ For the cynical emphasis with which he insists upon this truth, the name and reputation of the philosopher Hobbes have suffered much. Yet his doctrine, however hyperbolically expressed, is true in substance. Man is by nature a fighting animal, and force is the ultima ratio, not of kings alone, but of all mankind. Without “a common power to keep them all in awe,” it is impossible for men to cohere in any but the most primitive forms of society. ”

“ Custom, merely as such, has no legal authority at all; it is legally effective only because and in so far as it is the expression of an underlying principle of right approved by those who use it. When it is based on no such ethical conviction or opinio necessitatis—when those who use it hold themselves free to depart from it if they will—it is of no legal significance. The only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members. ”

“ That it is on the whole expedient that courts of justice should become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, “the voices of right reason”; they are in theory the utterances of Justice speaking to men by the mouth of the state; but too often in reality they fall far short of this ideal. Too often they “turn judgment to wormwood,” and make the administration of justice a reproach. ”

“ If the law confers a right upon one man which it does not confer upon another, the reason is that certain facts are true of him which are not true of the other, and these facts are the title of the right. Whether a right is inborn or acquired, a title is equally requisite. The title to a debt consists in a contract, or a judgment, or other such transaction; but the title to life, liberty, or reputation consists in nothing more than in being born with the nature of a human being. Some rights the law gives to a man on his first appearance in the world ”

“ The true rule is that a custom, in order to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity. We shall see, when we come to discuss the theory of precedent, how the authority of judicial decisions is, in general, similarly conditional rather than absolute; a precedent which is plainly and seriously unreasonable may be overruled instead of followed. ”

“ Were men to act on any other principle than this, excess of caution would paralyse the business of the world. The law, therefore, allows every man to expose his fellows to a certain measure of risk, and to do so even with full knowledge. If an explosion occurs in my powder mill, I am not liable for negligence, even though I established and carried on the industry with full knowledge of its dangerous character. This is a degree of indifference to the safety of other men’s lives and property which the law deems permissible because not excessive. ”

“ Law is jus in respect of its contents, namely the rule of right; it is lex in respect of its source, namely, its recognition and enforcement by the state. We see, then, how it is that so many words for law mean justice also; since justice is the content or subject-matter of law, and from this subject-matter law derives its title. We understand also how it is that so many words for law do not also mean justice; law has another side and aspect from which it appears, not as justice realised and established, but as the instrument through which its realisation and establishment are effected. ”

“ The duty of the judicature is to discover and to act upon the true intention of the legislature—the mens or sententia legis. The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. ”

“ This is the conclusion to which a developed system of law might be expected to attain. But the law of England has chosen another way. The community of the realm is an organised society, but it is no person or body corporate. It owns no property, is capable of no acts, and has no rights nor any liabilities imputed to it by the law. Whatever is said to the contrary is figure of speech, and not the literal language of our law.
How, then, are we to account for this failure of the law to make so obvious and useful an application of the conception of incorporation and legal personality? ”

“ The state has not one real right available against all, but an immense number of personal rights, each of which avails against a determinate tax-payer. On the other hand, the right of the state that no person shall trespass on a piece of Crown land is a single interest protected against all the world, and is therefore a single real right. The unity of a real right consists in the singleness of its subject-matter. The right of reputation is one right, corresponding to an infinite number of duties; for the subject-matter is one thing, belonging to one person, and protected against all the world. ”

“ Is it essential that a lease should be of less duration than the right which is subject to it? This is almost invariably the case; land is leased for a term of years or for life, but not in perpetuity; the owner of a thing owns it for ever, but the lessee of it possesses it for a time. We may be tempted, therefore, to regard this difference of duration as essential, and to define a lease as a right to the temporary exercise of a right vested in some one else. ”

“ The validity of a legal principle is entirely independent of its truth. It is a valid principle of law, not because it is true, but because it is accepted and acted on by the tribunals of the state. The law is the theory of things, as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. ”

“ New rules are very often merely analogical extensions of the old. The courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old—of the ratio juris, as the Romans called it. The whole thereby becomes a single and self-consistent body of legal doctrine, containing within itself an element of unity and of harmonious development. At the same time it must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice. It has no independent claim to recognition. ”

“ Furthermore, so long as punishment is conceived rather as expiative, retributive, and vindictive, than as deterrent and reformative, there seems no reason why the incidence of liability should not be determined by consent, and therefore why a guilty man should not provide a substitute to bear his penalty and to provide the needful satisfaction to the law. Guilt must be wiped out by punishment, but there is no reason why the victim should be one person rather than another. ”

“ Possession is a matter of fact and not a matter of right. A claim may realise itself in the facts whether it is rightful or wrongful. Yet its rightfulness, or rather a public conviction of its rightfulness, is an important element in the acquisition of possession. A rightful claim will readily obtain that general acquiescence which is essential to de facto security, but a wrongful claim will have to make itself good without any assistance from the law-abiding spirit of the community. An owner will possess his property on much easier terms than those on which a thief will possess his plunder. ”

“ It is impossible to say with truth and a priori what evidence is or is not sufficient for proof. It is not true that hearsay is absolutely destitute of evidential value; it is not true that a contract for the sale of land cannot be satisfactorily proved by oral testimony; it is not true that the contents of a document cannot be well proved by a copy of it. To elevate these maxims and such as these from their proper position as counsels for warning and guidance, to the level of rigid and peremptory rules, is to be inevitably led astray by them. ”

“ We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new. But no custom of any sort is of any validity as against statute law. The authority of legislation is in English law higher than that of custom. By no length of desuetude can a statute become invalid, and by no length of contrary usage can its provisions be modified in the smallest particular. The common law will yield to immemorial usage, but the enacted law stands for ever. ”

“ The ignorant physician who kills his patient, or the unskilful blacksmith who lames the horse shod by him, is legally responsible, not because he is ignorant or unskilful—for skill and knowledge may be beyond his reach—but because, being unskilful or ignorant, he ventures to undertake a business which calls for qualities which he does not possess. No man is bound in law to be a good surgeon or a capable attorney, but all men are bound not to act as surgeons or attorneys until and unless they are good and capable as such. ”