Page:Harvard Law Review Volume 9.djvu/327

299 JUSTICE ACCORDING TO LAW. 299 be one law for Peter and another for John. Not that every rule must or can apply to all citizens ; there are divers rules for divers conditions and classes of men. An unmarried man is not subject to the duties of a husband, nor a trader to those of a soldier. But every rule must at least have regard to a class of members of the State, and be binding upon or in respect of that class as deter- mined by some definite position in the community. This will hold however small the class may be, and even if it consists for the time being of only one individual, as is the case with offices held by only one person at a time. Certain rules of law will be found in almost every country to apply only to the prince or titular ruler of the State, or to qualify the application of the general law to him. In England, again, the Prince of Wales, as Duke of Cornwall, is the subject of rules forming a singular exception to the general law of property ; and the Lord Chancellor has many duties and powers peculiar to his office. But these rules are not lacking in the qual- ity of generality, for in every case they apply not to the individual person as such, but to the holder of the office for the time being. They may be anomalous with regard to the legal system in which they occur; and, like other rules of law, they may or may not be expedient on the particular merits of each case. They are not in any necessary conflict with the principles of legal justice merely because they are of limited or unique application. Next, the rule of generality cannot be fulfilled unless it is aided by the principle of equality. Rules of law being once declared, the rule must have the like application to all persons and facts coming within it. Respect of persons is incompatible with justice. Law which is the same for Peter and for John must be administered to John and to Peter evenly. The judge is not free to show favor to Peter and disfavor to John. As the maxim has it, equality is equity, though the working use of the maxim is not quite so simple as this. So much is obvious, and needs no further exposition. But it may be proper to point out that the rule of equality does not exclude judicial discretion. Oftentimes laws are purposely framed so as to give a considerable range of choice to judicial or executive officers as to the times, places, and manner of their application. It is quite commonly left to the judge to assign, up to a prescribed limit, the punishment of proved offences ; indeed, the cases in which the court is deprived of discretion are exceptional in all modern systems. Apart from capital offences, there are only one or two cases in English criminal law where a minimum punishment is im-