A SCALE OF VALUES IN THE COMMON LAW
| DOI | http://doi.org/10.1111/j.1468-2230.1937.tb00005.x |
| Published date | 01 June 1937 |
| Date | 01 June 1937 |
June,
1937
MODERN LAW REVIEW
27
A SCALE OF VALUES
IN
THE
COMMON LAW
F
the Common Law of England
it
may in tnith be said
that
it
contains
a
noble conception of man and a noble
conception of law:
of
man as
a
reasonable Seing and of
law as a reasonable rule. The reasonable man of the law
is
naturally also a freeman. Freedom in the conception of the
Common Law
is
a thing native to man as man. “Libertas est
naturalis facultas ejus quod cuique facere libet nisi quod jure
aut vi prohibetur. Sed secundum hoc videtur quod servi sint
liberi, nam et ipsi liberam habent facultatem nisi vi aut jure
prohibeantur.”’
This conception of man as by nature
a
free and reasonable
being gave rise to the potion of the
liber
et
legalis
homo,
the free
and lawful man of the English Law. “Among laymen the time
has indeed already come when men of one sort, free and lawful
men, can be treated
as
men of the common, the ordinary, we ma17
perhaps say the normal sort, while men of all other sorts enjoy
privileges or are subject to disabilities which can be called excep-
tional.”2 “The growth of the Common Law was unfavourable to
the existence of a class of slaves”3 or unfree citizens. In course
of time the Courts of Common Law lumped together all the classes
of unfree tenants under the comprehensive term
villani.4
Heng-
ham’s
Parva
shows the growth of the bias in favour of the personal
freedom of the villein? “The Common Law must in the interests
of the State and in obedience
to
its
own principles hold the villein
to be a free and lawful man.”6 By the beginning of the reign
of
Elizabeth the process was complete and the Common Law had
established all men in the status of freedom.’ The free and lawful
man in whose image the English citizen was thus made was
conceived to be a reasonable man, innocent of crime and
0
1
Bracton. Ed.
Woodbine,
vol.
ii,
pp. 29-30. The passage continues: “in
hac parte
jus
civile vel gentium detrahit
juri
naturali.”
Pollock and Maitland.
History
of
English
Law,
vol.
i,
407.
Holdsworth,
History
of
English
Law,
ii,
202
:
‘‘
At the end of the Anglo-Saxon
period praedial serfs comprised most
of
the humble cultivators
of
the soil.”
Holdsworth,
ii,
42.
4
Holdsworth,
sp.
czt.
iii. 199-208.
0
Ib.
iii,
500, cf. iii, 457
:
“The very idea of‘a normal person is the creation of
a
common law which has strengtvmed the bonds of society
by
administering an
equal justice to all its members.
1
See Hargraves’ argument in
Sonamcrsetf’s
Case
:
Broom’s
Constifufional Lo%,
Ed. 18M, pp. 65-105. In
Cartwvighf’s Case,
II
Eliz. (Rushworth,
ii,
468). it was
revolved that England was “too
pure
an air
for
a slave to breathe in.”
Ib.
ii. 264.
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