LECTURE III.

LEGAL FORMS-continued.

HITHERTO our attention has been confined to the consideration of municipal law; we must turn now to the other great departments of constitutional and international law, which take their rise from the development of the notion of a state, or from men dealing with each other in organised groups. It will be observed that constitutional law is the first branch of law which

becomes disclosed by legislation. As in India, one conquest after another may sweep over a district without affecting the primitive legal customs of the people,' so in Rome, and at a later period in England, the private law was being slowly developed, while the greatest changes were taking place in the constitution by express enactment. The Twelve Tables, though so antiquated, are dated three centuries from the foundation of the city, and after the establishment of the Republic. In England, a large proportion of early statutes are constitutional or administrative, the extensive employment of legislation in private law as presently developed being very late indeed. For this reason it may be thought that I should have commenced with

1 See p. 91, Note.

constitutional law; but in view of Austin's position, that constitutional and international law are not law proper,' it is more satisfactory to show the substantial identity of the forms in those branches and in municipal law. In constitutional law we find the three forms to which I have already referred, with this difference that, whereas in municipal law the judicial enactment of law is the common type, in constitutional law it is the most rare. In early times we find governments set up and overturned-one king deposed and another put into his place, without any idea of a theoretical constitution. In this way the constitutions of nearly all ancient states were gradually moulded. The English constitution is an example of an intermediate class. Point after point, relating to the rights and powers of the monarch and the relations of the two houses of parliament, has been settled by a struggle between the parties concerned. Sometimes the judges have been appealed to as expositors of the law; sometimes the two parties made a compromise; often one yielded; but whatever the process, the result has been the expression of something which is essentially a positive law. Much of the law which relates to this subject has grown up from custom. For example, the rights of burghs to send members to parliament; the powers of the cabinet, the number of members of which it should consist; the

1 See Amos' Science of Jurisprudence, p. 409, where this position is refuted as to international law.

powers and duties of privy councillors; these and such matters may be taken as corresponding to the municipal law which is made simply by being put into

force.

The most difficult class of cases which fall under this form of law is that of rebellions. One recent writer says of revolution that "its essence is illegality, and its justification is its success."1 The same view is expressed more at length by Dr. Abdy in regard to the English revolution of 1688. To a passage in which Chancellor Kent quotes Vattel with approbation, in bringing forward the interference of William of Orange as an example of justifiable interference, he says:-"But however deep may be our debt of gratitude to those by whose help and means the revolution of 1688 was happily accomplished, and however close may be the connection between that event and the assurance of our present liberties, we must not shut our eyes to the fact that the conduct of William, if judged by principles of international law, was above and beyond its spirit to be avoided. as a precedent, and certainly not to be assigned as a good and substantial example of a rule neither founded on reason nor warranted by precedents." If a revolution took place once a month in any state, it might be possible to find "precedents." But even then it would be difficult for a state to have such method in its madness as

1 Letters of Historicus, p. 41.

2 Abdy's Edition of Kent's Commentaries (2nd Ed.), p. 82.

to reduce revolution to a science, and embody its rules in a code. It is impossible, when you are stopped by a highwayman on a lonely heath, to proceed to the metropolis and get an act of parliament to deal with him, or even to call in the assistance of a magistrate in the nearest town. The best precedents you can follow advise you to shoot him if you can, and the law does not declare that to be illegal.2 Fortunately, revolutions do not occur often, and the circumstances must be dealt with as they arise. The original text of Chancellor Kent, which Dr. Abdy has spoiled with the above quoted interpolation, puts the matter in its true light, when he says, "The right of interposition in this class of cases" (and the same remark applies to rebellion) "must depend upon special circumstances, cannot be precisely limited, and is of the utmost delicacy in its application. It must be submitted to the guidance of eminent discretion, and controlled by principles of justice and sound policy." When tyranny and oppression become unbearable, justice and right can only be vindicated by force. It makes no difference that the act of rebellion cannot be judged by a jury, as in the case of a common assault by a private individual. The rebellious subject must be content to be judged by foreign nations, or perhaps by a remote posterity. For this reason the true patriot does not hesitate to risk

1 Amos' Science of Politics, chap. xi.

2 Lady Bloomfield's Reminiscences, vol. i., p. 2.

his own life, for he knows that the striking example of his death will be strong evidence of the sincerity of his opinions. The patriotism which commits murder with the certainty of impunity is of a very suspicious description. The feeling to which Dr. Abdy has given expression is the one to which I already alluded in speaking of municipal law-viz., that the individual aggrieved must not take law into his own hands. But as we have seen, this rule does not apply when delay would be dangerous. In such cases a judgment can afterwards be passed on the act. The mistake into which Dr. Abdy has fallen is one that seems peculiar to lawyers. From the very earliest times down to our own day, we find that forms of procedure have overruled substantive rights. And though we do not go so far as the Romans in adhering strictly to the forms of the actiones legis, we still show a tendency to be hampered by them. Dr. Abdy would sacrifice substantive right to form in constitutional law.

Very little of our constitutional law is due to judicial decision. In most cases, where judicial action is necessary, the legislative body acts in a judicial

1 See Holmes' The Common Law, where many examples of this are given. See also decision in Watt Bros. v. Foyn, 1st Nov., 1879, 7 Rettie, 126, where it was held that a suspension was incompetent after an appeal had been allowed per incuriam to drop. The modern tendency is shown in the powers of amendment of records given to judges, and in the extensive powers of the appellate courts. See Court of Session Act, 1868, and Sheriff Court Act, 1874.