THE WEST LODGE,
DOWNING COLLEGE,
CAMBRIDGE.
_11 Dec. 1888._
I have been reading your proof sheets[16] with great interest, and
really as regards the parts which most concern me I have little to
suggest. I think the chapter on law and morality particularly good.
Were I writing the book I should in my present state of ignorance
"hedge" a little about continental notions of law. Since I had some
talk with you I have been reading several German law books, and my
view of the duties of a German judge is all the more hazy. I find that
a jurist, even when he is writing about elementary legal ideas, e.g.
possession, will cite "Entscheidungen der oberste Gerichte von Celle,
Darmstadt, Rostock etc.," _if he thinks them sound_--but how far he
would think himself bound as judge by decisions which made against
his theory I cannot tell. All seems rendered so vague by the notion
of a heutige römische Recht. But I think that you have just hit off
the English idea of a good judge--he does _justice_ when he sees an
opportunity of doing it. I do not think that a man could be a judge
of quite the highest order without a strong feeling for political
morality. On p. 92, chap. XII. you might add if you could do so that
our highest courts of appeal, House of Lords and Judicial Committee,
hold themselves bound by their own decisions in earlier cases.
As regards the existence of different laws in different parts of a
country you might reckon among the advantages the gain in experience.
I have no doubt that Scotch experience has improved English law and
English experience Scotch law. Thus some use of an experimental method
is made possible; e.g. take "Sunday closing" we can experiment on Wales
and Cornwall. On the whole I have been surprised to find how little
harm is done by the difference between Scotch and English law. I have
read but very few cases that were caused by such differences.
I admire the chapter on International Law and Morality; it is the
best thing that I have read about the subject. In my view the great
difficulty in obtaining a body of international rules deserving the
name of law lies in the extreme fewness of the "persons" subject to
that law and the infrequency and restricted range of the arguable
questions which arise between them. The "code" of actually observed
rules is thus all shreds and patches. In short, international law is so
incoherent.