tainty. He even made a proposition to King James, "touching the compiling and amendment of the laws of England," and offered his services "to compile a digest of the laws." The evils resulting from an indigestible heap of laws and legal authorities are great and manifest. They destroy the certainty of the law, and promote litigation, delay, and subtilty. The professors of the law cannot afford the expense and time necessary to collect and study the volumes, and they are obliged to rely too much on the second-hand authority of digests- ipse advocatus, cum tot libros perlegere et vincere non possit, compendia sectatur - glossa fortasse aliqua bona. (a)1 The period anticipated by Lord Bacon seems now to have arrived. The spirit of the present age, and the cause of truth and justice, require more simplicity in the system, and that the text authorities should be reduced within manageable limits; and a new digest of the whole body of the American common law, upon the excellent model of Comyns's Digest, and executed by a like master artist, retaining what is applicable, and rejecting everything that is obsolete and inapplicable to our institutions, would be an immense public blessing. (b) (a) Bacon's Aphorisms, De accumulatione legum nimia, Aph. No. 53-58; De novis digestis legum, Aph. No. 59–64; De scriptoribus authenticis, Aph, No. 78.

(b) In the Revised Constitution of New York, of 1846, art. 1, sec. 17, there is a provision made for the digest of the whole body of the laws of the state which makes it the duty of the legislature to appoint three commissioners, to reduce into a written and systematic code the whole body of the law of the state, or so much and such parts thereof as to the commissioners shall seem practical and expedient, and to report thereon to the legislature. The legislature is likewise to appoint three commissioners, who are to revise, reform, simplify, and abridge the rules of practice, pleadings, forms, and proceedings of the courts of record in New York, and report thereon. Art. 6, sec. 24. In England, the statute of 1 & 2 Vict. c. 110, empowered the judges to devise and frame the forms of writs to be used in the practice of the courts. This provision in the English statute shows wisdom in the selection of the agents who are to reform the practice, and a cautious moderation in guiding and limiting their discretion. The Report of the Commissioners appointed to revise the civil code of Pennsylvania, January, 1835, also showed much caution in touching the law of real property!; and they appeared solicitous rather to expand and mould the old law and the old actions to existing circumstances and the state of society, than to abolish them. Their object clearly appeared to reform and not to innovate, and this is what good sense and sage experience dictate.

1 A short account of the different attempts at codification may be found in the Edinburgh Review for October, 1869, No. 258, reprinted among "Essays on the Form of the Law," by T. E. Holland, London, Butterworths, 1870. The subject is partially discussed by Mr. Austin in

his 39th lecture, and the notes at the end of his published works, and by Lord Westbury's speech of June 12, 1863. Hansard, clxxi. 776. [See also an essay on "The Proposed Codification of the Common Law," by James C. Carter, of New York City.]

A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and 476 the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law. (a) The language of Sir William Jones (b) is exceedingly forcible on this point. "No man," says he, "who is not a lawyer, would ever know how to act; and no man who is a lawyer would, in many instances, know what to advise, unless courts were bound by authority as firmly as the Pagan deities were supposed to be bound by the decrees of fate."

Throughout the whole period of the Year Books, from the reign of Edward III. to that of Henry VII., the judges were incessantly urging the sacredness of precedents, and that a counsellor was not to be heard who spoke against them, and that they ought to judge as the ancient sages taught. If we judge against former precedents, said Ch. J. Prisot, (c) it will be a bad example to the barristers and students at law, and they will not give

(a) 16 Johns. 402; 20 id. 722; Lord Chancellor Parker, 1 P. Wms. 452; Ashhurst, J., 7 T. R. 419; Lord Tenterden, 3 B. & Ad. 17; Best, C. J., 3 Bing. 588; Cowen, J., 23 Wendell, 341.

(b) Jones's Essay on Bailments, 46.

(c) 33 Hen. VI., 41.

any credit to the books, or have any faith in them. So the Court of King's Bench observed in the time of James I., (d) that * 477 the point which had been often adjudged * ought to rest in peace. The inviolability of precedents was thus inculcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period.

But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are more than one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it. Lord Mansfield frequently observed, that the certainty of a rule was often of much more importance in mercantile cases than the reason of it, and that a settled rule ought to be observed for the sake of property; and yet, perhaps, no English judge ever made greater innovations and improvements in the law, or felt himself less embarrassed with the disposition of the elder cases when they came in his way, to impede the operation of his enlightened and cultivated judgment. The law of England, he observed, would be an absurd science, were it founded upon precedents only. Precedents were to illustrate principles and to give them a fixed certainty. His successor, Lord Kenyon, acted like a Roman dictator, appointed to recall and reinvigorate the ancient discipline. He controlled or overruled several very important decisions of Lord Mansfield, as dangerous innovations, and on the ground that they had departed from the precedents of former times, and disturbed the landmarks of property, and had unauthorizedly superadded equity powers to a court of law. "It is my wish and my comfort," (d) Cro. Jac. 527.

said that venerable judge, "to stand super antiquas vias. I cannot legislate, but by my * industry I can discover what * 478 our predecessors have done, and I will tread in their footsteps." The English courts seem now to consider it to be their duty to adhere to the authority of adjudged cases, when they have been so clearly, and so often, or so long established, as to create a practical rule of property, notwithstanding they may feel the hardship, or not perceive the reasonableness, of the rule. There is great weight in the maxim of Lord Bacon, (a) that optima est lex, quæ minimum relinquit arbitrio judicis; optimus judex, qui minimum sibi. The great difficulty as to cases consists in making an accurate application of the general principle contained in them to new cases, presenting a change of circumstances. If the analogy be imperfect, the application may be erroneous. The expressions of every judge must also be taken with reference to the case on which he decided; we must look to the principle of the decision, and not to the manner in which the case is argued upon the bench, otherwise the law will be thrown into extreme confusion. (b) The exercise of sound judgment is as necessary in the use, as diligence and learning are requisite in the pursuit, of adjudged cases. (c)

Considering the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should *not 479 exhibit deep traces of the progress of society, as well as of the footsteps of time. The ancient reporters are going very fast, not only out of use, but out of date, and almost out of recollection. The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law, aud the most judicious application of the abstract and eternal principles of right to

(a) Bacon's Works, ii. 448, Aphor. 46.

(b) Best, Ch. J., 2 Bing. 229; Marshall, Ch. J., 6 Wheaton, 399.

(c) M. Dupin, in his Jurisprudence des Arrêts, has given us many excellent rules and observations on the value and on the abuse of the authority of reports of judicial decisions. He admits the force of them when correctly stated, and applied with discernment and sobriety; and that they have the force of law when there has been a series of uniform decisions on the same point, because they then become conclusive evidence of the law. The immense collection by M. Merlin, in his Répertoire, and especially in his Questions de Droit, he would say, had the stamp of Papinian, if it were permitted to compare any lawyer to Papinian.

the refinements of property. They are likewise accompanied by illustrations best adapted to the inquisitive and cultivated reason of the present age. But the old reporters cannot be entirely neglected, and I shall devote the remainder of this lecture to a short historical review of the principal reporters prior to the present times. No one ought to read a book, said M. Lami, (a) (and the remark has peculiar application to law books) unless he knows something of the author, and when he wrote, and the character of the work, and the character of the edition.

The division line between the ancient and the modern English reports may, for the sake of convenient arrangement, be placed at the revolution in the year 1688. The distinction between the old and new law seems then to be distinctly marked. The cumbersome and oppressive appendages of the feudal tenures were abolished in the reign of Charles II., and the spirit of modern improvement and of commercial policy began then to be more sensibly felt and more actively diffused. The appointment of that great and honest lawyer, Lord Holt, to the station of Chief Justice of the King's Bench gave a new tone and impulse to the vigor of the common law. The despotism of the Stuarts was abolished for ever, and the civil and political liberties of the English nation were more explicitly acknowledged and defined, at

the accession of the house of Orange. The old reporters *480 * will include all the reports from the Year Books down to that period; and we will, in the first place, bestow upon those of them which are the most distinguished a cursory glance and rapid review.

-The oldest reports

3. Notice of the Principal Reports at Law. extant on the English law are the Year Books, which consist of eleven parts or volumes, written in law French, and extend from the beginning of the reign of Edward II. to the latter end of the reign of Henry VIII., a period of about two hundred years. There are a few broken cases, which may be gleaned from the old abridgments, and particularly from Fitzherbert, which go back to the reign of Henry III. The Year Books were first

(a) Entretiens sur les Sciences et sur la Manière d'étudier.

1 Year Books of 20 and 21, 30 and 31, 32 and 33 Edward I. have now been published, with a translation under the direc

tion of the Master of the Rolls. Earlier still is the Placitorum Abbreviatio, which goes back to the reign of Richard I. The