Page:Harvard Law Review Volume 5.djvu/200

1 84 HARVARD LAW REVIEW. keep it in at his peril. The defendant relied on the conflicting principle that in case of a duty imposed by law (as distinguished from one created by the agreement of the parties), nothing more than actual prudence was required, and dealt with the cases relied on by the plaintiff as isolated exceptions having no bearing on the case in hand. This view was adopted by the Court of Exchequer, Bramwell, B., dissenting. But this judgment was reversed in the Exchequer Chamber. Blackburn, J., in an elaborate opinion, which is an excellent example of common-law reasoning, indorsed the principle suggested by the plaintiff, which, he said, applied equally, " whether the thing be beasts, or water, or filth, or stenches." He thus rejected the broad principle contended for by the defendant; and he distinguished the cases of collision on the highway, and the like, on the ground that there the plaintiff, by entering into a situation where the chance of accident might reasonably be foreseen, took the risk upon himself. The House of Lords affirmed the judgment of the Exchequer Chamber and expressed particular approval of the opinion of Blackburn, J. Lord Cairns suggested as the test the question whether the use of the defendant's land was " natural " or " non-natural," the present case being an illustration of the latter class. The noticeable feature of this course of reasoning is the scrutiny and comparison of previous cases, and the extraction from them of a principle within which this case is held to come. The process thus takes on the form of declaring the existing law, of applying the principle, like a statutory rule, to the facts. But these " prin- ciples " which are under discussion, and of which the cases are re- garded as specific applications, are clearly not in all respects like definite rules of law. They differ from such rules in their scope and precision, approaching in this respect those general maxims or ground rules by which the whole reasoning process is carried on. 1 They are rather to be regarded as guides in drawing analo- gies, and their precise limits are in dispute. Moreover, a statute necessarily precedes its application ; here the process is reversed. The cases came first, the statement of the principle afterward, as something extracted from them. They cannot strictly be called applications, or, at any rate, conscious applications, of the princi- 1 Maine has remarked in his Village Communities, 335, on peculiarities in the use of the word " principle." As a matter of fact, we use the word in various senses, and it is impossible to tie it down to any one meaning.