such as an endeavour has been made to lay down, at least for the Saskatchewan Act. So far as the Manitoba and Alberta Acts are concerned, sections 151 and 134 were no doubt intended to establish even a more clear and simple principle, but if the conclusions of this article are correct, it would seem to follow that the result has been rather the opposite. D. J. THOM.

Regina.

THE THEORY OF JUDICIAL DECISION.

II.

NINETEENTH-CENTURY THEORIES OF JUDICIAL FINDING OF LAW.1

All nineteenth-century theories of judicial decision in one way or another grow out of the natural-law thinking of the seventeenth and eighteenth centuries. According to the classical natural-law theory all positive law, i.e., the whole body of legal precepts that furnish the grounds of actual decision in the courts, was a more or less feeble reflection of an ideal body of perfect rules, demonstrable by reason, and valid for all times, all places and all men. Positive legal precepts got their whole validity from their conformity to these ideal rules. In other words, jurists and judges were striving to make the grounds of decision conform to an ideal philosophical pattern resting on reason and identical with an ideal moral pattern. With the breakdown of the natural-law philosophy at the end of the eighteenth century, the ideal philosophical pattern was replaced in general use by an ideal analytical pattern-a conception of a body of logically interdependent legal precepts commanded or authoritatively recognized by the state or derivable by logical processes from precepts so commanded or so recognized or by a historical pattern of a body of traditional principles and conceptions, representing the unfolding of an idea of right or an idea of freedom in human experience of the administration of justice, and fixing for all time the lines of legal development since it revealed the orbit of the self-realization of the idea. The latter left to the jurist only a task of observation and formulation and to the judge a mere task of finding the historically determined grounds of decision and formulating them in his opinion.

1 The second of three lectures delivered before the Bar Association of the City of New York on January 9th, 17th and 23rd, 1923. It appeared in the Harvard Law Review, vol. 36, p. 802. It is reprinted here with the permission of the author, the Harvard Law Review Association and the Bar Association of the City of New York.

Along with the two principal patterns in nineteenth-century theory, namely, the analytical and the historical, which for our present purpose may well be called the imperative and the traditional, the philosophical pattern persists to a certain extent throughout the century-partly in various forms of a law-of-nature theory, and partly in a metaphysical theory. Also the philosophical, the historical and the analytical theories merge to some extent, at the end of the century, in a positivist theory which is much urged by writers but of relatively little influence upon the courts. Putting them in the order in which chronologically they affect American judicial decision, we may recognize five theories in the last century: (1) The law-of-nature theory in various stages of decay; (2) the analytical or imperative theory; (3) the historical or traditional theory; (4) the metaphysical theory or theory of deductions from rights as corollaries of liberty; and (5) a positivist theory in various forms.

We began to import the natural-law theory and to put it to work as an instrument both of shaping our legal materials and of furnishing grounds of decision at a time when it was already moribund. The most pressing legal problem of the formative period of our institutions -the period from the adoption of the federal constitution to the civil war-was to do work out and lay down rules, to provide an apparatus of legal precepts to meet the requirements of expanding American life. This problem determined our system of courts, our judicial organization and in large part the course of our legal development until the last quarter of the nineteenth century. It was less important to decide particular causes justly than to work out sound, logically consistent and abstractly just rules for the future. For about a century the chief energies of our courts were turned toward the development of a body of law in each of our jurisdictions by means of judicial decision. The function of ascertaining and declaring the law became the most important part of judicial activity. An elaborate succession of appeals and new trials sought to insure that the grounds of the ultimate decision be so carefully formulated as to give a clear precedent elaborately worked out. The theory of natural law was peculiarly adapted to this purpose and as new commonwealths were set up in successive waves of our westward expansion, the theory was given new life or new form until, only yesterday, the work of judicial development of a common law for our newest commonwealths had been substantially achieved. Thus the natural-law theory was kept alive in America long after it had ceased to be a living theory in the Old World because we had to use judicial decision as a means of furnishing a body of law for a succession of new jurisdictions.

Accord

In Europe in the latter half of the eighteenth century the lawof-nature theory was changing from a creative theory to a stabilizing theory. Starting with the proposition that natural law was a body of eternal principles universally applicable, it was believed that the whole body of these principles might be discovered at one stroke by an effort of reason. Hence it was conceived to be the duty of jurists not merely to criticize existing rules with reference to these principles; even more it was their duty to work out completely all the applications of these eternal principles and put them in the form of codes. ingly in the middle of the eighteenth century a strong movement for codification set in which bore fruit in the code of Frederick the Great (1749, 1780-1794), the French Civil Code (1804), and the Austrian. Civil Code (1767-1811). This movement for codification went along with an era of absolute governments on the model of the French monarchy of Louis XIV., and led more and more to the conception of law as something authoritatively declared by the state which was to be the dogma of the analytical jurists in the nineteenth century. Thus the law of nature was crystallized. It has ceased to be an ideal pattern for creative lawmaking, and had become an ideal pattern of systematic authoritative statement of a law that was to stand fastand this at the very time we were borrowing it as a creative instrument.

Another stabilizing factor in natural law in the formative period in America was identification of the natural rights of man as declared by the Continental jurists, with the immemorial common-law rights of Englishmen as declared by Coke and Blackstone. In the natural-law identification of law with morals the moral duties of a perfect man in an abstract state of perfection, and the qualities of such a man in such a state, whereby he ought to have certain things and do certain things, furnished an absolute and universal system of legal duties and legal rights. The great juristic achievement of the nineteenth century is the thorough working out of a system of individual legal rights, and that achievement has its roots deep in this theory. But we, with no apparatus of centuries of interpretation of Roman texts to meet our conditions upon which to fall back, and with no assurance how far English legal materials had been received and were in force, had to give a certain fundamental concrete content to natural rights at once and at the outset. We did this by taking our philosophical mold from Grotius and Pufendorf and Vattel and Burlamaqui, and pouring into that mold a concrete content from Coke's Second Institute and Blackstone's Commentaries. In so doing we set up an ideal development

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of the immemorial common-law rights of Englishmen, as defined by Coke and by Blackstone following him, as a universal natural law. Thus we gave form and direction to our judicial working out of a system of legal rights adapted to the new world. But in contrast with the classical natural law it was a political and legal, not an ethical, form and direction. In this connection natural law was a force for fixity in legal development, not a liberalizing force as with the Continental jurists of the seventeenth century and even with Pothier in the eighteenth century.

Three other phases of the natural-law theory in the formative era of American law likewise made for stability. In the first place, we set out almost from the beginning to identify natural law with an ideal form of the positive law. In theory the positive law was valid only in so far as it was in accord with the universal ideal law. But in practice we judged the common law of England by an ideal form of itself. This was no new phenomenon. Roman jurists had given a legal content to the Greek conception of the just by nature in much the same way, taking an ideal rational development of the precepts of the strict law for a rational pattern of universal law. Also, in the seventeenth century jurists assumed that for the most part the Roman law with which they were familiar was embodied reason, and hence that for the great majority of cases an ideal development of Roman principles was synonymous with the law of nature. Thus we used the theory to prune away archaisms and arbitrary rules of the strict law, and to give the law logical internal consistency, exactly as the Romans had used it in the second century, and as Western Europe had used it in the seventeenth century. It was an instrument of growth. But it directed and ordered growth. With us, however, it was used as a mode of developing law through judicial decision, whereas at Rome and in seventeenth-century Europe it had affected the law through juristic speculation as to what ought to be.

Another stabilizing influence was the conception that a universal commercial law, as set forth in the Continental treatises on that subject, was declaratory of natural law. English courts began by an actual ascertainment for each case, as a matter of fact, of what the custom of merchants actually was. Presently they began to consider what the custom of merchants ought to be-and it was characteristic of the time to assume that when they had determined as a matter of reason what it ought to be, that of itself settled what it was. The Continental treatises on commercial law, on which Kent and his brethren rely on every page of Johnson's reports, are a medley of general commercial usage, modernized Roman law, and juristic con

sideration of what ought to be. They served to liberalize commercial law from end to end. But they served also to stabilize the law, and in Bentham's language to make it "cognoscible," since they gave something to which lawyers might turn with reasonable assurance both as the basis of advice and as the basis of argument.

In the third place, a conception of an ideal of comparative law as declaratory of natural law made for stability and gave direction to judicial development of the law. We must not forget that reception of English law as the law of post-Revolutionary America was not a foregone conclusion, nor did it take place without a struggle. Law and lawyers were not popular in the time just after the Revolution. Many would have liked to put the administration of justice on a nontechnical basis of natural equity. Many more sought to cover up their ignorance of law, and palliate their lack of training, by calling for rejection of the legal systems of the old world and the setting up of a new body of American law on the basis of the law of nature. Many would have rejected English law, which suffered from the odium then attaching to things English, and would have received French law. Not the least of the means by which Kent and Story overcame this prejudice and insured our reception of English common law was a skilful use of comparative law, seeming to show the identity of an ideal form of the common-law rule with an ideal form of the civillaw rule, and thus demonstrating the identity of each with a universally acknowledged law of nature.

In the theory that the common law was received only so far as applicable to the physical, political, social and economic conditions of America and in a later and specialized form, in which legal precepts were judged by their conformity to the "nature of American government" or the "nature of American institutions," the theory of natural law had more of the creative spirit of the seventeenth century. In truth, what is original in the judicial working out of American common law in our classical era comes in through these ideas. Through them courts rejected inconvenient items in what they found in the English books, or in the treatises on commercial law, or in comparative law. Where the other identifications of natural law were instruments of borrowing and adaptation from other legal systems, these theories were agencies of developing our indigenous political and social institutions into legal materials. But before the century was out the doctrine of applicability had done its work, and the ideas of conformity to the nature of American government and conformity to the nature of American institutions had become means for holding down social legislation by subjecting it to