held, that tithe was payable in respect of these rakings, although no actual fraud was imputed to the farmer, and although he and his servants were careful to leave as little rakings as possible in that mode of harvesting the crop.1

It may be observed, however, that for an injury to real property incorporeal an action may be supported, however small the damage,

[*108] and therefore a commoner may maintain *an action on the case for an injury done to the common, though his proportion of the damage be found to amount only to a farthing; and generally the superior courts of law have jurisdiction to hear and determine all suits, without any reference to the magnitude of the amount claimed or demanded, or to the extent of the injury complained of, subject, however, to the power of the judge to certify under stat. 43 Eliz. c. 6, where the damages recovered are less than 408., and thereby deprive the plaintiff of his costs; and subject likewise to the provisions as to costs and jurisdiction, contained in the recent stat. 8 & 9 Vict. c. 95.3

Not only in cases analogous to those above mentioned, but in others of a different description, viz., where trifling irregularities or even infractions of the strict letter of the law, are brought under the notice of the Court, the maxim de minimis non curat lex is of frequent practical application. It has, for instance, been applied to support a rate, in the assessment of which there were some comparatively trifling omissions of established forms. So, with reference to proceedings for an infringement of the revenue laws,' Sir W. Scott observed-" The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked."

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*Lastly, in an indictment against several for a trespass, all are principals, because the law does not descend to distinguish the different shades of guilt in petty misdemeanours."

1 Glanvill v. Stacey, 6 B. & C. 543; 13 E. C. L. R.

2 Pindar v. Wadsworth, 2 East, 154. See 22 Vin. Abr. "Waste," (N).

3 Sects. 128, 129.

5 The Reward, 2 Dods. Adm. R. 269, 270.

4 White v. Beard, 2 Curt. 493.

4 Bla. Com. 36.

OMNIS INNOVATIO PLUS NOVITATE PERTURBAT QUAM UTILITATE PRODEST.

(2 Bulstr. 338.)

Every innovation occasions more harm and derangement of order by its novelty, than benefit by its abstract utility.

It has been an ancient observation in the laws of England, that, whenever a standing rule of law, of which the reason, perhaps, could not be remembered or discerned, has been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule has in the end appeared from the inconveniences that have followed the innovation;1 and the judges and sages of the law have therefore always suppressed new and subtle inventions in derogation of the common law.2

It is, then, an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or swerve from according to his private sentiments; he being sworn to [*110] *determine, not according to his own private judgment, but according to the known laws and customs of the land,—not delegated to pronounce a new law, but to maintain and expound the old one," jus dicere et non jus dare."

And here we may observe the important distinction which exists between the legislative and the judicial functions. To legislate jus facere or jus dare, is to exercise the will in establishing a rule of action. To administer the law-jus dicere, is to exercise the judgment in expounding and applying that rule according to legal principles. "The province of the legislature is not to construe but to enact, and their opinion, not expressed in the form of law as a declaratory pro

11 Bla. Com. 70. See Ram's Science of Legal Judgment, 112 et seq..

2 Co. Litt. 282, b, 379. b; per Grose, J., 1 M. & S. 394.

* See per Lord Camden, 19 Howell, St. T. 1071; per Williams, J., 4 Cl. & Fin. 729. 41 Bla. Com. 69. Per Lord Kenyon, C. J., 5 T. R. 682; 6 Id. 605; and 8 Id. 239; per Grose, J., 18 East, 321; 9 Johnson, R. (U. S.) 428; per Lord Hardwicke, C., Ellis v. Smith, 1 Ves. jun. 16.

57 T. R. 696; 1 B. & B. 563; 5 E. C. L. R.; Ram's Science of Legal Judgment, p. 2; argument, 10 Johnson, R. (U. S.) 566.

vision would be, is not binding on courts whose duty is to expound the statutes they have enacted.'

Our common law system, as remarked by a learned judge, consists in the applying to new combinations of circumstances, those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules where they are not plainly unreasonable and inconvenient to all cases which arise, and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves [*111]" could have devised. *"It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science."2

Accordingly, where a rule has become settled law, it is to be followed, although some possible inconvenience may grow from a strict observance of it, or although a satisfactory reason for it is wanted, or although the principle and the policy of the rule may be questioned.3 If, as has been observed, there is a general hardship affecting a general class of cases, it is a consideration for the legislature, not for a court of justice. If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than upon those particular circumstances to deviate from a general rule of law; "hard cases," it has repeatedly been said, "are apt to make bad law," and misera est servitus ubi jus est vagum aut incertum-obedience to law becomes a hardship when that law is unsettled or doubtful; which maxim applies with peculiar force to questions respecting real property; as, for instance, to family settlements, by which provision is made for unborn generations; and if, in consequence of new lights occurring to 1 Judgment, 14 M. & W. 589.

2 Per Parke, J., Mirehouse v. Rennell, 1 Cl. & Fin. 546.

3 Per Tindal, C. J., Mirehouse v. Rennell, 8 Bing. 557; 21 E. C. L. R. See the authorities cited, Ram's Science of Legal Judgment, 33-35.

4 Per Lord Loughborough, 2 Ves. jun, 426, 427; per Tindal, C. J., Doe d. Clarke v. Ludlam, 7 Bing. 180; 20 E. C. L. R.; per Pollock, C. B., Reg. v. Woodrow, 15 M. & W. 412; per Wilde, C. J., Kepp v. Wiggett, 16 L. J., C. P. 237.

5 See 4 Cl. & Fin. 378.

64 Inst. 246; Shepherd v. Shepherd, 5 T. R. 51, n. (a); 2 Dwarr. Stats. 785; Bac. Aphorisms, vol. 7, p. 148; argument, 9 Johnson, R. (U. S.) 427, and 11 Peters, R. (U. S.) 286.

new judges, all that which was supposed to be law by the wisdom of our ancestors were to be swept away at a time when the particular limitations are to take *effect, mischievous indeed would be the consequence to the public.1

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So, likewise, with respect to matters which do not affect existing rights or properties to any great degree, but tend principally to influence the future transactions of mankind, it is generally more important that the rule of law should be settled, than that it should be theoretically correct.2

The above remarks as to the necessity of observing established principles apply to rules acted upon in courts of equity, as well as in the tribunals of common law, it being a maxim that—jus respicit æquitatem,3 the law pays regard to equity. For, where a rule of property is settled in a court of equity, and is not repugnant to any legal principle, rule, or determination, there is a propriety in adopting it at law, since it would be absurd and injurious to the community that different rules should prevail in different courts on the same subject. And it was observed by Lord Eldon, while speaking of the practice of conveyancers in a case concerning a lease under a power, that courts of law should inquire of decisions in courts of equity, not for points founded on determinations merely equitable, but for legal judgments proceeding upon legal grounds, such as those courts of equity have for a long series of years been in the daily habit of pronouncing as the foundation of their decisions and decrees."

The judicial rule-stare decisis—does, however, admit of exceptions, where the former determination is most evidently *con

trary to reason,—much more, if it be clearly contrary to the [*113]

divine law. But, even in such cases, subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For, if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it was not the established custom of the realm, as has been erroneously determined."

1 Per Lord Kenyon, C. J., Doe v. Allen, 8 T. R. 504. See per Ashhurst, J., 7 T. R. 420.

2 See per Lord Cottenham, C., Lozon v. Pryse, 4 My. & Craig, 617, 618.

3 Co. Litt. 24, b, a court of law will also, in some cases, notice equitable rights.

See per Parke, B., 12 M. & W. 445, and in 16 L. J., Exch. 163.

4 Farr v. Newman, 4 T. R. 636.

5 Smith v. Doe, 7 Price, 509; S. C. 2 B. & B. 599; 6 E. C. L. R.

61 Bla. Com. 69, 70.

We may appropriately conclude these remarks with observing, in the language used in a recent important judgment, that, although innovation on settled law is to be avoided, yet "the mere lateness of time at which a principle has become established is not a strong argument against its soundness, if nothing has been previously decided inconsistent with it, and it be in itself consistent with legal analogies."

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*CHAPTER IV.

RULES OF LOGIC.

THE maxims immediately following have been placed together, and entitled "Rules of Logic," because they result from a very simple process of reasoning. Some of them, indeed, may be considered as axioms, the truth of which is self-evident, and which consequently admit of illustration only. A few examples have in each case been given, showing how the particular rule has been held to apply, and other instances of a like nature will readily suggest themselves to the reader.2

UBI EADEM RATIO IBI IDEM Jus.

(Co. Litt. 10, a.)

Like reason doth make like law.3

The law consists, not in particular instances and precedents, but in the reason of the law; for reason is the life of the law,-nay, the common law itself is nothing else but reason; which is to be understood of an artificial perfection of reason, acquired by long study, observation, and experience, and not of every man's natural reason."

'Judgment, Gosling v. Veley, 7 Q. B. 441; 53 E. C. L. R.; per Lord Denman, C. J., 16 L. J., Q. B. 373.

2 The title of this division of the subject has been adopted from Noy's Maxims, 9th ed. p. 5. 3 Co. Litt. 10, a.

4

Ashby v. White, 2 Lord Raym. 957; the entire judgment of Lord Holt in this celebrated case well illustrates the position in the text. 5 Co. Litt. 97 b.