to the king;1 and he held that the crown has power to grant a charter with a non obstante of an express act of parliament.2 The bias above referred to has been touched by a contemporary thus:-" In case any implicit confidence should be demanded even for the writings of Hale, we extract from a recent lecture by Professor Amos the warning of Sir Michael Foster. It cannot be denied, and I see no reason for making a secret of it, that the learned judge hath in his writings paid no regard to the principles upon which the Revolution and present happy establishment are founded. The prevailing opinions of the times in which he received his first impressions might mislead him; and it is not to be wondered at if the detestable use the parliament's army made of its success in the civil war did contribute to fix him in the prejudices of his early days." And though Lord Campbell's view of his character is so favourable, that almost the only one of his faults or bad practices, except to be sure that he is obliged to say, that his conduct in deciding R. v. Duny, the witchcraft case, as he did, made him the real murderer of two women, which Lord Campbell does not find means to palliate, is that of smoking, which the noble biographer expresses himself as afraid that Hale committed to excess, yet other authorities have dealt less leniently with the chief justice; and the same bias in cases of treason has not escaped the sagacity of Mr. Hallam, who, though in feeble terms, signifies his regret at the timidity of Hale on such occasions, and points out the evil consequences which have arisen from following his authority.* Granting therefore that Lord Hale was the author of this treatise, his authority, unsupported by a decided case, will probably not be deemed very conclusive in a question where the claims of the crown and the subject conflict.

But then (it is said) various treatises of authority and whole generations of judges have adopted Hale's doctrine; nevertheless, the chain cannot be stronger than its weakest link. "Mere statement and restatement of a doctrine-the mere repetition of the cantilena of lawyers—cannot make it law, unless it can be traced to some competent authority; and if it be irreconcilable to some clear legal principle."5

1 Vere v. Sampson, Hardres, 214.

2 In Thomas v. Sorell, Vaugh. R. 330; S. C. 1 Freem. 85; 1 Lev. 217; 2 Keb. 245; 3 id. 76 et seq.; Hale, C. J., was one of eight judges who held such a charter good against four who held it void.

Edinb. Rev. January, 1851, p. 117.

Hallam, Constit. Hist. vol. ii. p. 321, 5th edit. See an instance, 1 Hale, P. C. 118, pl. 7.

5 Per Lord Denman, C. J., in Dom. Proc. O'Connell v. Reg. 11 Cla. & F. 373, which was the first case in which it had ever been doubted that a general

So in Hutton v. Balme,1 the Court of Exchequer, going much further than this, overruled the decided cases running through a period of nearly fifty years, cases appearing in numerous reports, and involving a doctrine laid down by all the text writers on the subject. But all these solemn judgments were traced to a dictum by Lord Mansfield in his first judicial year (in fact twelve days after his appointment), occurring in Cooper v. Chitty, 1 Burr. 20), which dictum was held by Mr. Justice Bayley to be untenable; and Lord Lyndhurst, C. B., pronounced the unanimous opinion of the court, denying the authority of those cases, and overruling them all. After this there is nothing surprising in the case of Reg. v. Millis,3 which occurred on a subject in which there was an unanimous opinion at the English Bar, founded on the dicta of judges as illustrious as any who have ever filled the seats of justice in this country, upon a question of the most delicate nature and of transcendant importance, viz. of what is a valid marriage. Dicta were recorded of Hale, Lord Mansfield, Lord Ellenborough, Lord Kenyon, Lord Tenterden, and Lord Chief Justice Gibbs, and many other judges, all clearly taking the same view, and Lord Stowell had even pronounced a deliberate decision according to that opinion. Yet when Reg. v. Millis came before the House of Lords, the judges were of opinion directly contrary to their predecessors; and the House of Lords being equally divided, the result was, the judgment of the court below stood confirmed against all the dicta and the decision mentioned. Nor can it be necessary to remind legal readers how the practice of general warrants and secretary of states' warrants, though established upon the unvarying usage of many years, and the authority of text books, was utterly demolished by a series of cases, the first moment it came to be questioned. One more instance, not noticed hitherto

judgment is good on an indictment consisting of several counts, of which one or more is bad, provided one or more be good; the House of Lords, however, held the contrary of this doctrine, which was traced to a gratis dictum of Lord Mansfield, thus setting aside the well established practice, though there was not, in the words of Lord Brougham, "one dictum of a judge, one sentence of a text writer, or one shadow of a decision," to be brought forward in favour of the change.

4 R. v. Wilkes, 19 St. Tri. 982; S. C. 2 Wils. 151; Wilkes v. Wood, at Nisi Prius, Lofft's Rep. 1; Huckle v. Money, 2 Wils. 205; Beardmore v. Carrington, 2 Wils. 244; Entick v. Carrington, 19 St. Tri. 1073; S. C. 2 Wils. 275; Money v. Leach, 3 Burr. 1692, 1742. Though it was said in argument in both the last cases that the practice was not older than the Revolution, yet there are distinct traces of a very similar practice having been current much

we believe, may be mentioned, as showing clearly the way in which doctrines come to be received under that large head, as Lord Denman has declared it to be, of law taken for granted. In Buller's Nisi Prius, treating of the action for mesne profits, it is said, "In case the plaintiff can prove his title accrued before the time of the demise, and prove the defendant to have been longer in possession, he shall recover antecedent profits," and a nisi prius decision of Eyre, C. J., is referred to. Now, besides this and another nisi prius ruling (Doswell v. Gibbs, 2 Car. & P. 615) there appears to be no reported case to support this statement, which is manifestly contrary to principle, yet nearly a dozen treatises have copied the law as thus laid down by Buller, referring to his book; and this is the more remarkable, as there are several decisions and authorities to the contrary,1 which have been overlooked. As was said by the Court of Exchequer Chamber, in speaking of an obiter dictum of the full Court of Queen's Bench, reported in an old case in Ventris, "These various repetitions, derived from the same source, cannot raise the authority of the proposition itself higher than that which it originally possessed;" and on the whole we think it may safely be concluded that neither a series of concurring dicta, nor established practice, nor unbroken unanimity of text writers, can make that to be law which rests on no principle, supposing the statute law to be silent on the subject.

But it perhaps may be urged this case is placed on the footing of principle; for Mr. Jerwood contends, that all land is held mediately or immediately of the crown, and therefore, unless it can be proved by producing the grant or other matter of record, by which the land of the sea shore in any given case passed out of the sovereign, the property therein still remains a flower of the crown. Now it is true that Mr. Jerwood cites-perhaps somewhat needlessly-the index of an Yearbook to establish the above recondite feudalism respecting the tenure of lands; but does his conclusion follow? Because "the lands in London.

earlier. See Howell's case, Tri. T. 19 Eliz.; 1 Leon. 70; and some curious precedents, Moor. Rep. 839. See also Anon. Ventr. 31.

1 Anon. 1 Vern. 105; 2 Lilly, Pract. Reg. 596; Tilley v. Bridges, 2 Vern. 519; S. C. Prec. Chanc. 252; Vin. Abr. Mesne Profits, B., citing 2 Bulstr. 25, acc.; per Lord Hardwicke, C., 1 Ves. sen. 249; Newport's case, Skin. 424.

2 Veley v. Burder, 12 A. & E. 307. The freedom of a slave landing in England was established by Lord Mansfield in a case (Somersett v. Stewart, Lofft's Rep. 1), where he openly declared in effect his carelessness of the authority of judges, however eminent, if it were contrary to principle; and the question was decided, in opposition to opinions of Lord Talbot and Lord Hardwicke.

3 Dissertation, p. 29.

are holden of the king," is it quite a consequence that every acre belongs in fee simple to the sovereign, the grant of which to a subject cannot be proved at this day by the record? Possibly some of his and our readers may be inclined to doubt whether Mr. Jerwood displays such a familiarity with ancient grants, records and similar muniments as qualifies to be a safe guide on this part of the subject, when they find him seriously attempting to dispute with the learned serjeant the meaning of the term infra manerium, and contending, on the authority of Facciolati's Ciceronian Latin Dictionary, that infra means "below" in that connection, with a view of invalidating the effect of Sir Henry Constable's case, which the serjeant (as we submit with perfect correctness) had claimed as an authority in his favour. Now, not trusting ourselves to dwell upon the oddity of calling in Facciolati to decide a question of Mediæval Latinity, it will probably suffice to observe that there are two other places in Sir H. Constable's case in which the word occurs, and from its context can obviously be capable of no other meaning than "within," which every one who has ever seen an old municipal charter knows is the indisputable sense that, as the serjeant observes, the word bore in the times of which he is speaking. A thousand other instances might be produced in proof. This is material, because we believe all grants of wreck use the words infra manerium; and as wreck can hardly be thrown on the manor above high water mark, such use looks very much like an acknowledgment that the shore or land between low and high water mark is part of the manor.

In the argument for the city, and we must say, speaking of the form of it, and not undertaking to pronounce farther at present, that a more calm and compact argument we believe it would be difficult to instance, or one in which all superfluities are more skilfully pared away; every sentence telling and conducing to the main result, so as to form a signal example of that concinnitas which Cicero so often insists upon as an essential element in the art of persuasion, and even recalling the praise which that great lawyer and acute critic bestows on another

1 Fitz. N. B. 144, G.; Com. Dig. Prerog. D. 59.

2 Such are infra burgum, infra corpus comitatis. In the old commission of sewers, Fitz. N. B. 113, A. the phrase tam infra libertates quam extra occurs four times. So the writ of quare ejecit infra terminum, id. 197, S. The statute of Prerogativa Regis uses the term infra regnum. See also 3 Inst. 113; 2 Show. 131; Hale, Jur. Maris, 27, from all which authorities it will be found this use of the word was well established a little earlier than Coke upon Littleton, as Mr. Jerwood supposes, p. 59, an ingenious and learned conjecture, with which he is so well satisfied-sui amans sine rivali―as to have been at the trouble of referring to it twice or three times in his index.

powerful advocate-reperiebat quid dici opus esset, et quomodo præparare, et quo loco locari; memoriâque ea comprehendebat Antonius-in that argument the principal ground taken is the silence of the old reports and other earlier authorities with respect to this alleged right of the crown, and authorities and cases are cited which are remarkable in this view, because touching on kindred subjects, such as wreck, &c., they make no allusion to this. Many of them are especially remarkable, if they may not be considered conclusive in favour of the learned Town Clerk's argument in this further respect, which he thus glances at. Answering an objection of the Lord Chancellor to the effect that the fact of a controversy between two subjects having been decided by the court in a very old case, known as the Toppesham case, did not show that the crown had not an original title to the subject in dispute, which was "portus et piscaria et mariscus de Topsham," the serjeant observes, "No, my lord, but I think your lordship will see that if the crown had had any title, it would have interposed, as was the practice in those days." Now the practice not only was doubtless so, but it went even further, for "if the title of the crown appeareth, yet he is not party, the court of office shall adjudge for him," is laid down in Willion v. Berkeley, Plowd. C. 145; and the same doctrine is confirmed by numerous examples cited by Lord Hale himself in a note to Fitzherbert's Nutura Brevium, who also mentions an instance of it. Certainly then it is striking to find a total absence of any trace of such prerogative right in these ancient cases and authorities, several of them expressly treating of and setting forth the royal prerogatives, and very many others dealing with subjects bordering on this, all allusion to which nevertheless they obstinately omit to make; it is not the less striking when we consider that every prerogative is as ancient as the crown itself.+ Having instituted, for the purposes of this article, a minute and anxious investigation into this matter, we are prepared to confirm to the full the serjeant's averments of this class. The same, so far as an examination of 900 of them goes, we can say respecting the Saxon charters; so of other averments. Thus we find laid down as the law, temp. Hen. I., Hæc sunt jura quæ rex Angliæ solus et super omnes homines habet in terrâ suâ, enumerating, among other things, thesaurus inventus, naufra

1 Cicero, Brutus.

2

Speech, p. 16.

3 Fitz. N. B. 38, E.; and see Lord Hale's Note (a); and per Choke, C. J., Yearb. 21 Edw. IV. fol. 3, pl. 5; per Hankeford, J., 11 Hen. IV. fol. 71. ✦ R. v. Bates, Lane, 26; 16 Vin. Abr. 567, pl. 27.