But what, I would ask, happens when the case which has arisen between 4 and X is altogether one of first impression; when, that is, there is not in existence any principle of law which can be applied in any way to provide the proper ratio decidendi as between A and X, other than that very thing which Mr. Dicey says it is not the judge's business to determine, namely, what, under the circumstances of the case, 'may be fair between A and X'? It is undeniable that judges must find a solution, with or without authority, for every case which comes before them; and it is cases primae impressionis, where no authority direct or indirect can be found to guide the Court, that it is desired to deal with in this article. All that portion of case-law which does not rest either upon customs of the realm or upon local customs, or upon rules of foreign origin incorporated into our law, can only be based upon just such decisions. In fact we have to do here with those rules of judicial law which Mr. Austin refers to 'as established by judges ex proprio arbitrio, i. e. according to their own opinions of what ought to be law, whether the standard be utility or any other1.'

Such cases might naturally be expected to grow fewer as time goes on and precedents accumulate, but, as will be presently shown, they not infrequently arise even to-day; and Mr. Dicey's words above quoted can, it is submitted, only be accepted so far as they are concerned, if we understand his expression 'principle of law' to include such elementary considerations as justice, common sense, and public convenience. These are the ultimate principles of

case-law.

In Millar v. Taylor 2 where the question was whether there is copyright at common law apart from statute, Willes J. utters the notable dictum (at p. 2312), that 'private justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent; much more when received and approved by usage.' And in the same case Lord Mansfield says (at p. 2398):

'From what source is the common law drawn, which is admitted to be so clear, in respect of the copy before publication? From this argument-because it is just, that an author should reap the pecuniary profits of his own ingenuity and labour. It is just, that another should not use his name, without his consent. It is fit,

must always take the form of a deduction from some legal principle whereof the validity is admitted, or of some application or interpretation of some statutory enactment': p. 486.

Austin's Lectures, 5th ed., p. 634. Such decisions are of that kind which Sir M. Hale says, in his History of the Common Law, 'seem to have no other guide but the common reason of the thing, unless the same point has been formally decided': 6th ed. by Runnington, p. 91.

(1769) 4 Burr. 2303.

that he should judge when to publish, or whether he ever will publish.... It is agreeable to the principles of right and wrong, the fitness of things, convenience and policy, and therefore to the common law, to protect the copy before publication.'

These dicta may well be taken as the text for this article; or rather, stating the purport of them in a more general way, it may be put thus:-Where there is no governing precedent, direct or indirect, justice and other principles of right and wrong, the fitness of things, convenience, and policy, make case-law. They are referred to with approval by Erle J. in the subsequent case of Jefferys v. Boosey 1. On the other hand in the case of Millar v. Taylor itself, Yates J. says (at p. 2359), that to support the copyright of authors as a moral and equitable right has indeed a captivating sound; it strikes the passions with a winning address: but it... begs the very question in dispute. For the injustice it suggests depends upon the extent and duration of the author's property; as it is the violation of that property that must alone constitute the injury'; and in Jefferys v. Boosey, Pollock C. B. (at p. 935), referring to Willes J.'s words above quoted, says :

'He appears to think that, because upon general principles, he has satisfied himself of the justice and propriety of an author possessing such a right (i. e. copyright after publication), therefore, by the common law it exists.'

He then quotes the above words of Willes J. and says:—

I entirely agree with the spirit of this passage, so far as it regards the repressing of what is a public evil, and preventing what would become a general mischief; but I think there is a wide difference between protecting the community against a new source of danger, and creating a new right. I think the common law is quite competent to pronounce anything to be illegal which is manifestly against public good; but I think the common law cannot create new rights, and limit and define them, because in the opinion of those who administer the common law such rights ought to exist, according to their notions of what is just, right, and proper.'

And in the same case, in the House of Lords, Lord Brougham (at p. 968) says that he entirely concurs with the objection taken by Pollock C. B. to the argument of Willes J.

Nevertheless it is proposed to show by reference to quite recent cases, that the dicta above referred to of Willes J. and Lord Mansfield in Millar v. Taylor were not only true when spoken, but

1 (1854) 4 H. L. C. 815, per Erle J. at pp. 868, 876, in which latter place he says that in Millar v. Taylor, Lord Mansfield does the service of tracing the law upon the question to its source in the just and useful'; and adds that some of Lord Mansfield's successors 'appear to me to have turned away from that source of the law to which he habitually resorted with endless benefit to his country.'

are true to-day; and that if it is the fact, as it is stated in a recent well-known work, that a commonsense or reasonable view of the circumstances of the case would be considered a rather audacious ground of judicial decision by most lawyers, more especially, perhaps, in England',' this is only because the accumulation of precedents, direct or indirect, has become so great, and the original foundations of case-law are buried so deep beneath the superincumbent mass, that such lawyers have lost sight of them. Even to-day, however, cases not infrequently arise where there is no authority to guide or control the Court, and it will be found that the basis of decision in such cases is nothing else than right and wrong, common sense, or public convenience, balanced against one another, and harmonized to the best of the Court's ability. And so in the most interesting introduction to his Law of Trade Unions, Sir W. Erle says (pp. 49–51):—

'If the origin of the principles of the common law is to be traced beyond their practical existence, they seem to originate from conscience, i.e. from the same power which has made the majority of all free men of all ages and languages to have a perception of that which they feel to be just; and which they admire for itself, and assume to be useful till the contrary be proved.'

To illustrate by decided cases the operation of these great basic principles as creative of case-law, and the way in which the judges in constructing and formulating the law upon them, balance them one against another, should make an interesting chapter in a practical study of the case-law system.

We may, then, conveniently consider the matter under the following heads :

1. Justice, humanity, and other moral obligations as a primary source of case-law.

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

3. Public convenience and other practical considerations as a primary source of case-law.

1. Justice, humanity, and other moral obligations as a primary source of case-law.

We cannot open this branch of the discussion better, perhaps, than by the words of Lord Kenyon in Pasley v. Freeman 2 :—

'All laws stand on the best and broadest basis which go to

1 Clark's Practical Jurisprudence, a Comment on Austin, at pp. 244-5. Professor Clark adds: 'I conceive, however, that a "reasonable view of the circumstances of the case" has been at the bottom of most of the decisions upon which our rules of English equity were founded: nor do I see how it can ever cease to be the one ground of decision, until every possible case can be provided for by a previous rule.' 2 (1789) 3 T. R. 51 at p. 63, 1 R. R. 634, 648.

2

enforce moral and social duties. Though, indeed, it is not every moral and social duty, the neglect of which is the ground of an action.... There are many cases where the pure effusion of a good mind may induce the performance of particular duties, which yet cannot be enforced by municipal laws. But there are certain duties, the non-performance of which the jurisprudence of this country has made the subject of a civil action.'

A good example of the Court, in the absence of direct or indirect authority, founding a legal duty on a moral obligation, is Queen v. Instan1. There the prisoner, a woman of full age, and having no means of her own, lived alone with, and was maintained by the deceased, her aunt, a woman of seventy-three. For the last ten days of her life the deceased suffered from a disease which rendered her perfectly helpless. During this time the prisoner lived in the house, and took in the food supplied by the tradesmen, but gave none of it to the deceased, nor did she procure for her any nursing or medical attendance, nor inform any one of the condition of the deceased, which no one but she knew. The death of the latter was substantially accelerated by want of food, nursing, and medical attendance. The Queen's Bench Division unanimously decided that a duty was imposed on the prisoner under the circumstances to supply the deceased with sufficient food to maintain life; and she was convicted of manslaughter. Lord Coleridge C. J. says (at p. 453):

'It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement 2. There can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in.... There was, therefore, a common law duty imposed upon the prisoner which she did not discharge. ... There is no case directly in point; but it would be a slur upon, and a discredit to the administration of justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her.'

It will be seen that the judgment does not state explicitly what is the legal principle' referred to, and on which the decision proceeds. It seems clearly to be nothing more or less than this:that where there is a clear moral obligation, in the opinion of the

1 [1893] I Q. B. 450.

2 Clearly not accurate. In the Common Law a man may, in certain cases, be liable as an insurer without having undertaken to be liable or omitted any possible diligence.-ED.

Court proper to be enforced by law, there the Court, even in the absence of all authority, ought to find a legal duty to exist corresponding to the moral obligation. But that this will not always be the case is shown in the somewhat analogous case of Reg. v. Shepherd, where, although the moral obligation seems quite clear, the Court did not translate it into a legal obligation. There, a mother (the prisoner) omitted to procure a midwife for her daughter, a girl of eighteen years of age, who was taken in labour in the house of the mother and her second husband, the girl's step-father, in consequence of which neglect the girl died. Erle C. J., delivering a judgment in which all the other judges concurred, said (at p. 155):

'We must take it that, if she (the prisoner) had used ordinary care, she would have procured the attendance of a midwife. . . . Yet the prisoner cannot be criminally responsible for not asking for that aid which, perhaps, might have been given without compensation. . . . These facts do not seem to me to fall within the principle of any of the cases which have been cited. . . . Here the girl was beyond the age of childhood, and was entirely emancipated.... I cannot find any authority for saying that that was such a breach of duty as renders the prisoner, in the event which ensued, liable to the consequences of manslaughter.'

Something may, perhaps, turn on the fact that Reg. v. Shepherd was decided in 1862, and Queen v. Instan thirty years later.

The power of the Court, however, in the absence of all authority, to declare a right to exist, or to not exist, on general considerations of aequum et bonum is illustrated by the very recent case of Bradford Corporation v. Ferrand 2. There a new question came up for decision, namely, whether, if underground water flows in a defined channel into a well supplying a stream above ground, but the existence and course of that channel are not known and cannot be ascertained except by excavation, the lower riparian proprietors on the banks of the stream have any right of action for the abstraction of the underground water, or to put the matter conversely, whether the owner of the land through which the underground water flows, has a right to extract it to the prejudice of the lower riparian proprietors. No English reported case had yet dealt with the right to water flowing underground in a defined but unknown channel. Farwell J., however, points out that the foundation of the rights of riparian proprietors to water flowing in a defined and known channel, or on the surface of the earth, which are now well settled, is stated throughout the cases to be jus naturae; and that there is a principle in English law which is akin to, if 2 [1902] 2 Ch. 655.

1 (1862) Le. & Ca. 147.