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be ignorant of the labour and extent of-in truth leaving such prescribed jurisdiction uncontrollably in the partial hands of the suitors themselves."

All this was terrible enough, but worse things must be said of the infamous Bill-"We are also of the opinion that the prescribed allowance of Ten Shillings on each Brief of Counsel instead of being quiddam honorarium to a Barrister is a reproach to the bestower, but more a dishonour to the Receiver, and in whatever light considered, is insulting and repugnant to the feelings of any professional gentleman who has had the education of a scholar and a lawyer or passed through the Academic Walks of an English University or Inns of Court as introductory to the severe studies of Westminster Hall," videlicet, William Firth.

The judges came in for rebuke for not advising the Lieutenant Governor to reserve the bill for the Royal pleasure. And this precious stuff was signed officially by attorney general and solicitor general and sent by Firth to Lord Liverpool, Lord Eldon (the lord chancellor) and Lord Ellenborough (the lord chief justice). He was not satisfied with this: in a private letter to the Secretary of State he earnestly requests him to read the "formal and decided opinion of the Solicitor General and himself," that he might see the "danger justly to be apprehended from such vulgar republican innovations... the King's Prerogative . . . manifestly shaken . .. the Act so pregnant with evil and mischief to the Kingly Government." Affecting to be upholding the dignity of the court he cannot refrain from attacking the judges for approving such an Act. "I should hope the first instance of any of the King's Supreme Court voluntary resigning up its own authority and jurisdiction."

And all in vain. To their credit be it said, the home government declined to interfere and the damnable, levelling, republican measure came into full effect-and the lawyers did not quit.

Osgoode Hall, Toronto, March 19, 1920.

WILLIAM RENWICK RIDDELL.

PRINCIPLES AND POETRY.-In a comment on Kelson v. Stilz (111 N. E. 423) which perpetrated an interesting though unnecessary juridical anachronism, an effort was made to track down the much used, and, it is to be suspected, much abused, word 'principle.' Five meanings were there isolated (I. L. R. XI 431): (1) The fountain of original precedent: i. e., discretion in contrast to rule; (2) generalized rule: e. g., volenti non fit iniuria; (3) purpose of a rule: i. e., end in contrast to means; (4) dominant rule: e. g., in a case of competing analogies; (5) primary rule: i. e., in point of time.

The list as given is very incomplete and it should now be supplemented. Among other possible applications, the following may be noted:

(6) The reason for a rule or for a complex of rules in contrast to the rule itself and as distinguished from the purpose of the rule (No. 3): e. g., the prevalence of fraudulent practices was the principle of the resolutions in Twyne's case (3 Rep. 80).

(7) An immutable proposition or one so regarded and therefore accepted as fundamental: e. g., "All men are equal" (Decl. Independ.); bonum est faciendum et malum vitandum (Aquinaswhere the meaning also coincides with No. (2)); the Sovereign is superior to law (Holmes); a legal relation is of two personsneither more nor less (Corbin). In this sense, 'principle' is an inflexible constitutional doctrine of legal reasoning comparable to Huygen's principle or to the principle of virtual velocities.

(8) An operative method of attaining a legal solution: e. g., in a given case the juridical conclusion may be reached in various ways depending on what theory is employed. For example, the operative legal relations may be worked out on the basis of trust, contract, bailment, ownership, mortgage, etc. The method of solution may then be said to be the 'principle' of the case. The case of Farmers Bank v. Logan ((1878) 74 N. Y. 568) is a good illustration for this meaning. In a somewhat wider sense, the ultimate fact which governs the solution may be taken as the 'principle.' Thus, in Re Grove ((1888) C. A. 40 Ch. D. 216) the solution essentially and ultimately turns on the principle that domicile of an illegitimate child at time of birth determines the potentiality of subsequent legitimation. 'Principle' in this sense coincides with 'rule,' but there is a difference. A rule is a formula of action; while the principle here is a fact upon which the rule is based.

(9) In patent law, 'principle' has the special meaning of nature (physical) law. It is a rule (or is it a principle?) of patent law that a discovered uniformity in the motions of matter cannot be patented though a process for employing the uniformity may be.

(10) Principle may also be taken as a rule derived from a particular source, as, for example, "a proposition elicited from the precedents by comparison and induction" (Maine). What doubtless is intended here is not a concrete rule such as that vehicles shall pass to the right or to the left, but a generalized rule (cf. No. (2)) such as "no liability without fault." The limitation can hardly be justified and it may be doubted if it is convenient. A rule constructed from an examination of a series of statutes would seem to be equally entitled to the name 'principle' with a rule induced from a group of cases. The hegemony of precedent in the AngloAmerican system is the explanation of the restricted application. In a Roman law country the emphasis would be on statute law.

(11) 'Principle' or principles also may be the inarticulate or only vaguely definable background of the legal institutions, concepts, maxims and brocards, and rules of a legal system-in a word, the indefinitely expressed or the unexpressed and even conjectural public policy of the state. It may take such inchoate verbal forms

1. It is not always easy to discover the precise meaning of 'principle' in judicial opinions even where, as is common, it is contrasted with positive law (authority). Two meaning seem to predominate: (1) justice; (2) policy. These two meanings are closely connected but they are not identical. In Carnegie v. Morrison ((Mass. 1841) 2 Metc. 381), Shaw, C. J., discussing the purpose of a letter of credit says: "Regarding it as a question of principle and not of technical law, it was an undertaking, etc." Here the sense

as 'Christian civilization,' 'due process,' 'reasonable care,' good faith, boni mores. (Dean Pound, as the writer understands him, would substitute the term 'standards' for this use of 'principles.' The substituted term should find an accepted place in our terminology.) It may also be realized in juridical practices not always showing a definite trend, but yet remotely comprehensible under some general formula of laissez faire, individualist or social utility, or co-operative solidarity. The usage just sketched would appear to be the one associated by the Indiana Supreme Court in the Kelson case with the term 'principle.' It must be remarked, however, that if we adopted no more of the Common Law than that, it needs a keen insight to determine that we did not rather adopt the corpus iuris of Justinian which also knew something of Christian civilization and boni mores. (The distinction between No. 11 and No. 1 is that of form and substance.)

(12) Rule. Use of 'principle' for the shorter word 'rule' seems to be common. It has no more justification than use of the word 'jurisprudence' when 'law' is meant.

This survey shows that 'principle' is quite as Protean as that amoeba of legal terms, 'right.' It is the favorite alike of courts and postprandial orators. There is an emotional side of the law. Invocation of principle is nearly always a symptom of poetic inspiration and, according to Plato, as "poets utter great and wise things which they themselves do not understand" we should heed the admonition of the poet who said:

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WHY THE COURTS MUST PREPONDERATE.—The thought underlying the division of governmental powers into the three coördinate departments is that each branch should be supreme in the field allotted to it, but should be restrained from encroachment upon the field of another. There must be some tribunal by which their respective claims may be determined or it is inevitable that there will be clashes of authority resulting in resort to arbitrary power. That tribunal of necessity is found in the constitutional courts. To the legislative and executive departments belong the affirmative duties of government-the one making, the other executing the laws. The real and efficient governmental check and balance is found in the fact that the courts exercise the negative office of restraint. They are not concerned with any conflict of their authority with that of other departments, nor is there temptation to enlarge their power. They deal only with concrete cases where the rights of litigants are to be determined. Questions of the validity or invalidity of statutes are but incidental. To hold a statute invalid involves no more enlargement of the power of the courts than does a decision upholding its constitutionality.

[From an address entitled "The Proposal to Give Congress the is neither justice nor policy, but fact. The letter of credit meant a certain thing whatever it might be interpreted to mean by rules of law.

Power to Nullify the Constitution," by Douglas W. Brown, President of the West Virginia Bar Association.]

THE REQUIREMENT OF INSINUATION IN THE GIFT OF AN ANNUITY. (Entscheidung des Reichsgerichts; Civilsachen, Vol. VIII p. 143 No. 36.)-Decision was rendered on the following

GROUNDS:

"The plaintiff, a widow, sues the defendant for a widow's support-fund of M. 4500 yearly beginning from the first of January, 1882, during the continuation of her widowhood. She bases her claim on a promise which the defendant, her father-in-law, made to her after the death of her husband. The defendant asserts that the promise was made under a condition which has not been performed.

"The Appellate Court takes the position that the plaintiff must prove as alleged the promise without condition. The Appellate Court judge declined to consider the allegation of an unconditional promise of rent as proved, unless the plaintiff should render the oath of fulfillment; and he made the decision dependent upon such oath. The legal nature of the plaintiff's claim was touched only at the conclusion of the second judgment. The result reached by the Appellate Court negatives the idea of a gift; it is rather a promise of dowry based on moral obligation. Even though the promise is regarded as one of gift, yet even then a correct interpretation of Cod. (de donat.) 8.54. 34. 4. shows that insinuation is not required in the case before us, because the gift does not extend beyond the life of the donee.

"The error brought by the defendant against this decision cannot be considered as well founded.

"The premise to be started from is this: the promise of an annuity for the support of a person for whose alimentation the promisor is not legally under obligation, implies a gift. In case the law prescribes insinuation, the validity of a gift depends upon the observance of the form. If this form is not observed, then the juristic act (if it exceeds the amount of 500 solidi) is entirely void, just as if nothing had ever happened at all. It follows that although the defendant in the earlier hearings of this case did not object because of the lack of insinuation, nevertheless he may make the point on revision that insinuation was necessary to the gift and did not take place-and of its failure to take place the statement of the facts in the second judgment leaves no doubt. Consequently, it requires an examination of law to determine whether the point of defendant is well founded. The legal provision regarding gifts of annuities is found in Codex 8. 54. 34. 4a:

nos autem certa divisione concludimus, ut si huiusmodi quidem fuerit donatio, ut intra vitam personarum stetur vel dantis vel accipientis, multae intellegantur donationes et liberae monumentorum observatione.

"Justinian's decision in its first sentence is apparently clear. The construction, according to the predominant opinion, is that in case the gift of an annuity is limited to the life of either the donor or the donee and does not exceed the amount of 500 solidi, insinuation is not required; because, as Justinian observed, nobody could know whether the said person would live the next year. A view opposed to this grows out of the second alternative: Sin autem etiam heredum ex utraque parte fuerit mentio [eod. 34. 4b].

"The difficulty comes from the second alternative: vel adiciatur tempus vitae vel donatoris vel qui donationem accipiet . . What these words mean, or whether for the sake of understanding them, the word 'non' must be inserted after the word 'vel' is a matter upon which there is dispute. This court holds as correct the opinion of those jurists who accept the view that the addition has not altered Justinian's construction which is stated in the first alternative. The law is also to be construed as meaning that although the yearly amount of the donation of an annuity does not exceed 500 solidi, nevertheless insinuation is required so far as the claims and duties involved therein pass by inheritance to the heirs of both parties; and that on the contrary, insinuation is not required if the gift is limited to the life of either party.

"Taking this as a basis of reasoning, the gift in the case before us needs no insinuation. No doubt prevails upon the proposition that the gift of annuity ends at the death of the donee.

"The defendant's further complaint that the amount of M. 4500 exceeds 500 solidi, is not well founded. On this point we refer to the decision of this court on February 24, 1880 (Entscheidung des Reichsgerichts in Civilsachen, Band I p. 313)." .

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