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not derived from, the jus naturale of Roman law, namely, the principle of aequum et bonum: and that the conception of aequum et bonum and the rights flowing therefrom which are included in jus naturale, underlie a great part of English common law, although it is not usual to find the law of nature' or 'natural law' referred to in so many words in English cases; and, in the result, coming to the conclusion that it was not right or reasonable that the lower owner should have any right to prevent obstruction of a subterranean stream flowing in a defined, but unknown course, Farwell J. made a declaration that there is no right in underground water where the course of its channel is unknown.

In the course of his judgment Farwell J. refers to other cases than those relating to watercourses, where the basis of the law laid down is nothing else than aequum et bonum. Thus he says, at


p. 662 :

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Lord Mansfield in Moses v. Macfarlan (1760) 2 Burr. 1005, 1012, explains the common count for money “had and received kind of equitable action to recover back money which “ought not in justice to be kept. ... It lies only for money which, ex aequo et bono, the defendants ought to refund. ... In one word, the gist of this kind of action is, that the defendant ... is obliged by the ties of natural justice and equity to refund the money.” So Baron Martin, in Freeman v. Jeffries (1869) L. R., 4 Ex. 189, 199, explains actions quasi ex contractu thus :-“ But for a long time implied contracts have been admitted into the law, where, a transaction having taken place between parties, a state of things has arisen in reference to it which was not contemplated by them, but is such that one party ought in justice and fair dealing to pay a sum of money to the others 1.” So the law merchant, says Buller J., in

, Master v. Miller (1791) 4 T. R. 320, 342, is “a system of equity, founded on the rules of equity, and governed in all its parts by plain justice and good faith and see an article on “the Law of ÎNature" by Sir Frederick Pollock in the Journal of Comparative Legislation for 1901.'

We have referred above to humanity as a primary source of caselaw. This is well illustrated by Bird v. Holbrook ?, where the question arose, apparently for the first time, whether the owner of land who, for the protection of his property, had set spring guns in his garden without giving any notice of his having done so, was liable to the plaintiff who climbed over the wall of the garden in pursuit of a stray fowl, and was shot. In the previous case of Ilott v. Wilkes 3 it had been decided that a trespasser on land who had

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?. As to implications being raised by the law where justice requires them, see article on judge-made law in L. Q. R. XX. 399, (1828) 4 Bing. 628, 29 R. R. 657.

(1820) 3 B. & Ald. 304, 22 R. R. 400.



notice before trespassing that there were spring guns set there, though not of the particular spots where they were placed, could not maintain an action against the owner of the land for injury sustained in consequence of his accidentally treading on the latent wire communicating with such a gun. In Bird v. Holbrook, however, the Court held in favour of the plaintiff, Best C. J. saying at p. 643 ? :

• We want no authority in a case like the present. We put it upon the principle that it is inhuman to catch a man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity and the sanctions of religion.'

So again in Merry v. Ryves 2/a rather old case, but one which settled the law, as is recognized in the recent case of In re Brown, Ingall v. Brown 3—the question came up before Lord Keeper Henley, whether one in loco parentis whose consent to a marriage was necessary, and who had once given his consent, could afterwards capriciously retract it. He decided in the negative on the sole ground that

it would be a most cruel thing to suffer young persons to contract and entertain affection, and then ad libitum withdraw the assent.'

In Bird v. Holbrook (4 Bing. at p. 641 4), Best C. J. says:

• It has been argued that the law does not compel every line of conduct which humanity or religion may require ; but there is no act which Christianity forbids that the law will not reach. If it were otherwise Christianity would not be, as it has always been held to be, part of the law of England.'

It is appropriate to our purpose to consider what measure of truth there is in the oft-repeated dictum that Christianity is part and parcel of the law of England. Lord Hale appears to have been the first to make this assertion in 1676 in the course of his judgment in Rex v. Taylor 5. The dictum was merely obiter, the application being that to reproach the Christian religion is to speak in subversion of the law. The learned judge was dealing with the objection that specific words, such as Taylor had uttered, were punishable only in the Ecclesiastical Court. He held that they were cognizable also in the secular Court, because they were a danger to the State. As late, however, as 1867, we find Kelly C. B. stating that there is abundant authority for saying that Christianity is part and parcel of the law of the land 6.' That action was one of breach of contract to let rooms to the plaintiff, which the defendant

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sought to justify because he had subsequently discovered that they were intended to be used for lectures maintaining that the character of Christ is defective, and his teaching misleading, and the Bible no more inspired than any other book. Kelly C. B. at the place referred to says:

* There is abundant authority for saying that Christianity is part and parcel of the law of the land, and that therefore to support and maintain such a proposition with respect to our Saviour is a violation of the first principles of the law, and cannot be done without blasphemy. I therefore do not hesitate to say that the defendant was not only entitled, but was called on and bound by the law, to refuse his sanction to this use of his rooms.'

Martin B. and Bramwell B. concurred in the result. In the later case, however, of Reg. v. Ramsey 8. Foote ?, Lord Coleridge expresses bis dissent from the above dicta of Kelly C. B. and points out that while, on principle, blasphemous libel is illegal, what constitutes blasphemous libel will differ with the progress of the times. He says that it may have been true at one time in a wider sense to say that Christianity was part of the law of the land than it is now, e.g. when Jews were under heavy disabilities for religion ; but that to base a prosecution for blasphemous libel comprising a denial of the truth of Christianity, simpliciter and per se, on the ground that Christianity is part of the law of the land, in the sense that it was said by Lord Hale, would now be a mistake.

It is no doubt true that Christianity is the religion of the Church which is by law established in England ; but on the other hand English law recognizes and protects the Jewish religion, and even allows Mohammedan places of worship to exist in Liverpool and elsewhere ; and it seems impossible to attach any real meaning to the statement that Christianity is parcel of the law of England beyond this—that English morality is a Christian morality, and as such plays an important part in making English law what it is. It does not appear possible to attribute any more precise meaning than this to the dictum of Lord Hale

It seems unnecessary to adduce further proof that justice, humanity, and morality are primary sources of case-law; and still less to labour the point that legal obligations are not coextensive with moral obligations. Two striking illustrations of the latter fact may, however, be briefly referred to. To take benefits under a will conferred by the testator expressly in confidence that one


" (1883) 48 L. T. N. S. 733 at p. 735. 2 See Encyclopaedia of the Laws of England, sub voc. Christianity: 'It is a pleasant phrase to quote ; but it has no precise meaning.' VOL. XXIT.



The Law Quarterly Review.


will do certain things which he desires done, and yet to act otherwise, could, probably, seldom be justified from a moral point of view; and yet it is well established that such confidences will not be protected or enforced by the law, unless intended to be positive trusts. It is still more clear that to make representations of one's intentions with a view that another shall act upon them, and yet to wilfully decline to make them good to the detriment of that person, can seldom be agreeable to common morality and honesty. Nevertheless it is clear law that the mere representation that the writer intends to do something in the future is not, though the person to whom it is made relies upon it, sufficient to entitle that person to obtain specific performance or damages. There must be a contract in order to entitle the party to obtain any relief?.

And as Courts will not always frame a legal obligation upon a moral obligation, so, also, they cannot allow moral obligations to override legal rights. Thus in Turner v. Mason 3 the defendant had peremptorily dismissed the plaintiff, who was his domestic servant, because she had absented herself from his employment in order to visit her dying mother, in spite of his express refusal to give the desired leave. The Court decided against the plaintiff who brought her action for wrongful dismissal, Alderson B. saying (p. 117) that the circumstances alleged by the plaintiff'amount only to moral duty, and do not show any legal right. We are to decide according to the legal obligations of parties. Where is a decision founded upon a mere moral obligation to stop? What degree of sickness, what nearness of relationship is to be sufficient? It is the safest way, therefore, to adhere to the legal obligations arising out of the contract between the parties.' So, too, in Blackburn, Low & Co. v. Vigors 4, Lord Macnaghten says (p. 543):-'I apprehend that it is not the function of a Court of Justice to enforce and give effect to moral obligations which do not carry with them legal or equitable rights.'

When then, we may ask, do moral obligations carry with them legal or equitable rights ? The only possible answer seems to be that, in the absence of statute or of some principle adopted from the civil or canon law, moral obligations carry with them legal or



1 In re Adams and The Kensington Vestry (1884) 27 Ch. D. 394.

? Per Cozens-Hardy J., In re Fickus, Farina v. Fickus (1900) 1 Ch. at pp. 334-5. There is no general equitablo doctrine of making representations good ': L. Q. Ř. xxii. 8.

(1845) 14 M. & W. u2, 69 R. R. 670. * (1887) 12 App. Cas. 531. In this the Court refused to give to a moral obligation the indirect consequences which it would have had if it had also been a legal obligation : (effect on policy of marine insurance of non-disclosure by a former agent of the plaintiff, who had been superseded by the agent who actually obtained the policy in question).

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equitable rights, only when judges, balancing considerations of justice and right with considerations of public convenience, practical expediency, and common sense, come to the conclusion that it is well to give them legal efficacy.

2. Common sense, and the reason of the thing, as a primary source of case-law.

It may be true, as Brett J. says in Robinson v. Mollett 1, 'that legal principles have almost always been the fundamental ethical rules of right and wrong,' but it seems to be going too far to say with Lord Esher M. R. in Blackburn, Low & Co. v. Vigors ? that:* Every general proposition laid down by judges, as a principle of law, as distinguished from an enactment by statute, is the statement of some ethical principle of right and wrong applied to circumstances arising in real life. For, in the first place, as will presently appear, in some instances public interest or practical convenience is allowed in case-law to override considerations of right and justice to particular individuals ; and in other cases it can scarcely be said that any question of right and wrong arises ; or else justice or other moral considerations are so evenly balanced between the parties as not to form a basis for decision. Such cases are those to which it is desired now to refer as having been decided on the ground of common sense and the reason of the thing, although in truth these are, perhaps, wide enough expressions to cover all the grounds of judge-made law with which this article is concerned 3 Sunbolf v. Alford * seems a good example. Here, in the absence of any authority, the Court of Exchequer laid down the law, or in fact

? (1875) L. R. 7 H. L. 802 at p. 817. : (1886) 17 Q. B. D. 553 at p. 558.

s What is called deciding a case upon principle' sometimes means deciding a case, in the absence of all authority, direct or indirect, upon one or more of the general considerations with which this article deals; and sometimes it means deciding a case upon indirect authority and analogy, in the absence of direct authority. As examples of the first we may cite Hambro v. Burnand (1904) 2 K. B. 10, per Romer L. J. at p. 23; and Burnley Equitable, &c. Society v. Casson (1891) 1 Q. B. 75, per Hawkins J. pp. 77-8, where there seems to have been neither direct nor indirect authority; and of the second, Wason v. Walter (1868) L. R. 4 Q. B. 73, per Cockburn C. J. at pp. 87 et seq. ; and Munster v. Lamb (1883) 2 Q. B. D. 588, per Brett M. R. at pp. 599-600. Of course Courts are much influenced in determining what is reasonable by prevailing practices, e. g. the practice of regarding mortgages of stocks and other securities of a fluctuating character as carrying with them a power of sale on failure to pay within a reasonable time : Deverges v. Sandeman Clark & Co. (1901) 1 Ch. 70; the practice of auctioneers receiving cheques in lieu of cash for deposits; Farrer v. Lacy, Hartland & Co. (1885) 31 Ch. D. 42: the practice of companies to pay a reasonable brokerage to secure subscriptions for shares; Metropolitan Coal Consumers' Association v. Scrimgeour (1895) 2 Q. B. 604: the practice of purchasers of colonial or other inscribed stock not to attend personally at the bank to accept the transfers to them, although that course is recommended on the common form of stock receipt issued to purchasers; Shepherd v. Harris (1905) 2 Ch. 310, where a trustee was held not liable for the fraud of his co-trustee acting as broker by reason of such non-attendance on his part, though he would have discovered the fraud if he had so attended personally. . (1838) 3 M. & W. 248, 49 R. R. 593.

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