Skip to main content

Full text of "Political Science Of The State"

See other formats

the system which it at length became, unless the praetors had
worked over the materials of the existing law by their edicts.
International private law, or the " conflict of laws " is, to a
great degree, the creation of the courts of Holland and some
other European states, with the view of removing the impedi-
ments in the way of private business by the application of
principles already acknowledged. And although this branch
of law is imperfect and not wholly settled, it may be said
that the peaceful commerce of nations could not without it
have reached the great proportions of modern international
trade. Nor can any one read the history of judicial preced-
ents, as evolved in English courts, without being struck with
the great value of this function of courts as an accompaniment,
as a substitute, even, for legislation.
6. Another exercise of judicial wisdom consists in equitable
jurisdiction, in putting into the place of strict literal law some-
thing higher and better. Here the spirit of law, its intention
and aim, is preserved, while in a particular case or class of
cases its operation gives way to considerations, not of expe-
diency but of extra legal right. Equitable exceptions are
like pardons in that they set aside the positive letter ; but
yet they confirm the rule on which it is founded. Summum
jus est summa injttria. It is evident that such a border land
as equity implies along the boundaries of law ought not to
be left within the control of an executive ; it must belong to
a body accustomed to travel over the whole territory of juris-
prudence, and familiar both with its rigid principles and its
beneficent spirit. Whether equity and law ought to be so
far separated as to be committed in practice to a different set,
of judges is a question which has been disputed, and on
which the jurists of different lands do not agree. The besk
opinion seems to be that all courts ought to have jurisdiction
in equity cases, since there will otherwise be too pronounced
a separation between the two kinds of judges.*
* In the United States the tendency for a considerable time has
been not to separate the two by assigning them to two classes of
judges ; and now (1876) the same thing is brought about in. the
great changes in administering law in England.