Page:The Green Bag (1889–1914), Volume 17.pdf/20

 A SCIENTIFIC SCHOOL OF LEGAL THOUGHT man as the foregoing; some of them may in law. As for chattels, that was a matter well be brought forward in aid of any case which naturally followed the rule in regard that may be made against the law in the to land; the first impulse of a man of spirit, particular under consideration. I shall now that is of a freeman, was to make war on talk more to, or in the presence of, our lay the one who had made the invasion and critic than with him. recover the booty with interest. That too The law of torts bristles with examples in was feudalism in law, because it was feudal which the connection between the pursuits ism in practice. Besides, there were reme of men and the law seems to be lost. Tres dies of a criminal nature suited to such pass to property is the ever-recurring in cases. It was only, then, in process of time, stance, and will suffice. The subject is upon the decline of feudalism and the appear founded upon what plainly looks like a ance of another social order, that the rule of priori doctrine, to wit the requirement of possession became an a priori rule, losing possession. To save the subject to the connection .with life. Then came the new common law courts, it was found necessary alignment of law. as early as the loth century for the judges Let us turn to equity. Equity has always to resort to fiction. A man who had the delighted to ''follow the law " — except when right to take possession of a chattel was law has gone wrong, in which case it has deemed to be in possession of it; and while, been content to follow right. Equity is for reasons relating to the effect of disseisin, indeed the most faithful example the law they could not apply the fiction in full to affords of the theory we are considering, reality, they could say that after a man because, unlike the common law, equity who had been ousted of his lands had re could always adapt itself, and generally hasgained possession, he was deemed to have adapted itself, to new situations as they been in possession all the time and only to have arisen without resorting to the devices have suffered from the other man's daily which the common law has so often found intrusion and carrying off the emblements. necessary to rescue itself from danger. Equity has always been, what a sound sys And so here in effect the law was correct ing itself to sound theory, though the im tem of law as a whole should be, flexible in mediate motive was to stay the hand of the its own nature and so adjustable to chan chancellor. The real idea still was that ging times and conditions. It supplies the idea and almost furnishes the model of a law should follow the pursuits of men. But the rule in trespass — the rule of sound theory — almost, but not quite, for possession — was not originally an a priori in equity, too, fact halts somewhat on theory. rule at all. In the case of lands it was in The chancellor once had criminal juris perfect keeping with the spirit of the times. diction of an important kind; indeed at first it was indeed only a reflection of them, that one of the chief grounds of the chancellor's a man who had been disseised, and of course jurisdiction as a judge was his power to put only a full freeman could be disseised, must a stop to crime, when in high places, beyond regain possession before anything else- what was supposed to be within the effective Otherwise he would lose, in the eyes of the reach of the common law judges. He after feudal state, the position of a freeman; to be wards permitted that feature of his office a man he must be in control of a freehold. to die out, as the ordinary judges found If the person ousted was only a tenant for themselves more and more equal to the busi years, he had no possession in law at all, ness of dealing effectively with wrongdoing until statute came to his relief, even though by the rich and powerful. But the judges in actual enjoyment of the land. That was did not find it necessary to make use of the feudalism in practice; that was feudalism chancellor's weapon, the injunction; indeed.