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wantonly broken in upon by statutes or new resolutions, the wisdom of the ruie hath in the end appeared from the inconveniences that have followed the innovation.
The doctrine of the law then is this : that precedents ard rules must be followed, unless flatly absurd or unjust ;' for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall
8 Precedents and rules must be followed even when they are flatly absurd and unjust, if they are agreeable to ancient principles. If an act of parliament had been brought in at the close of a session, and passed on the last day, which made an innocent act criminal or even a capital crime; and if no day was fixed for the commencement of its operation, it had the same efficacy as if it had been passed on the first day of the session, and all who, during a long session, had been doing an act which at the time was legal and inoffensive, were liable to suffer the punishment prescribed by the statute. (4 Inst. 25; 4 Term. Rep. 660.) This was both flatly absurd and unjust; but it was the clear law of England, and could only be abrogated by the united authority of the king, Lords, and Commons in parliament assembled, who, by the 33 Geo. III, c. 13, enacted that when the operation of an act of parliament is not directed to commence from any time specified within it, the clerk of the parliament shall endorse upon it the day upon which it receives the royal assent, and that day shall be the date of its commencement. Many other similar instances might be adduced.
It is therefore justly said in the civil law, that non omnium, quae a majoribus constituta sunt, ratio reddi potest ; et ideo rationes eorum quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur. Domat, 8.-CHRISTIAN.
Professor Christian maintains that precedents and rules must be followed, even when they are flatly absurd and unjust, if they are agreeable to ancient principles ; a condition which, it is apprehended, extracts the whole negation with which he would reverse the maxim in the text. Mr. Sedgwick contends, on the other hand, that Sir William Blackstone urges the doctrine too far, and sets up a distinction between legal precedents and laws, which, however sound in itself, does not aid the argument it is intended to enforce. "A law,” he says, “is a public statute, solemnly framed by the legislative, and confirmed by the executive, power. The decrees and determinations of the magistrates are not, rigorously speaking, laws: legal precedents ought therefore not despotically to govern, but discreetly to guide. With laws it is otherwise: to them the judge in his adjudications must conform,” &c. Now, it is evident that our author is speaking of the common law, and his commentators must so understand him; which common law is as absolute as the parliamentary statutes, and must be as rigidly observed by the judicature. Assuming that the legal precedent, or the statute, is absurd and unjust, the only question is, by what authority shall it be abrogated? Mr. Sedgwick points to the judges on the bench; and Professor Christian maintains the sole and supreme right of the legislature to exercise this function. The spirit and practice of the constitution is with him, and it is well for the interests of public justice that they are so. In the multitude of counsels there is wisdom; and the business of legislation, even upon the substitution of a wholesome law in the place of an absurd or unjust precedent, may well employ the highest wisdom in the state. There may be a difference of opinion as to what is absurd and unjust. For instance, the law of primogeniture has fallen under that censure from the lips of men whose station in society recommend even their hasty notions to the respect of their contemporaries. It would be difficult to reconcile the preference of the first-born to the exclusion of all the other offspring of the same family, with the law of nature, or the law of God; yet no judge would dare to treat this rule of law as absurd or unjust, and substitute an equal division of the patrimony among all the children, upon the question being brought before him. Had he such power given him by the constitution, his fellows might exercise it also; and it is no overstrained conjecture to say that fluctuating and conflicting adjudications would be the consequence, producing much more mischief than can ensue from the enforcement of any precedent or rule of law, however absurd or unjust, till the legislature piovides the proper remedy.
So, it being a rule of law, that a person born in England owes a natural allegiance, from which he cannot release himself, it was held, that a person born in England, of French parents, but removed out of England immediately after his birth, and educated in France, was guilty of treason in joining the French in war against England. Foster, Co. L. 59. Chitty.
rather escheat to the king or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions, and therefore can never be departed from by any modern judge without a breach of his oath and *the law. For herein there is nothing repugnant to natural justice;' though the artificial reason of it, drawn from the feodal
[*71 law, may not be quite obvious to everybody.10 And therefore, though a modern judge, on account of a supposed hardship upon the half brother, might wish it had beep otherwise settled, yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and seize any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was anjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole, however, we may take it as a general rule, “ that the decisions of courts of justice are the evidence of what is common law:" in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future.(9)"
(1) “Si imperialis majestas causam cognitionaliter esamemarerit, et partibus, ominus constitutis, sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant
hanc esse legem, non solum illi causæ pro qua producta est, sed et in omnibus similibus." C. 1, 14, 12.
. But it is certainly repugnant to natural reason, where a father leaves two sons by two different mothers, and dies intestate, and a large estate descends to his eldest son, who dies a minor or intestate, that this estate should go to the lord of the manor, or to the king, rather than to the younger son. When such a case happens in the family of a nobleman or a man of great property, this law will then appear so absurd and unreusonable that it will not be suffered to remain long afterwards to disgrace our books. See book ii. p. 231.-CHRISTIAN.
10 The more advanced student may consult Mr. Humphrey's “Observations on the Actual State of the English Laws of Real Property, with the Outline of a Code;" a production indicative of great mental vigour. He states the evil with perspicuity; whether it be fundamental, or whether it be one merely of inconvenient anomaly; and, with equal clearness, and, to many, with irresistible reason on his side, suggests the antidote. Cutty.
11 It is not possible to lay down, with mathematical precision, any rule in regard to the authority of precedents. Every judge and every court must consider that their function is jus dicere and not jus dare. How far previous determinations ought to be regarded as definitely settling any point or principle of law, will depend very much upon circumstances. The character of the court, and of the times in which such decision took place, will have its weight; and not a little, after all, will depend upon the tone and tendency of prevailing opinions. No constitutional lawyer would now think of citing precedents in State trials during the Tudors. The rule anciently applied in actions of slander with ridiculous particularity-verba sunt accipienda in mitiori sensu—has been exploded, and a large class of solemn adjudications, made while it prevailed, are of no authority. Thus: “You have poisoned your husband.” “Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved her head: the one part lay on one shoulder, and the other on the other:" in both cases held not actionable. 1 Roll. Abr. 71. Cro. Jac. 184. For, though she poisoned her husband, he might not have died : Though he cleaved the cook's head into two parts, the wound might not have been mortal. So in regard to the bar of the statute of limitations. Almost any admission or acknowledgment was greedily caught at to take the case out of the statute. “Prove your debt, and I will pay you: I am ready to account; but nothing is due.” Cowp. 548. " As to the matters between you and me, they will be rectified.” 2 T. R. 760. an extravagant bill you have sent me!" Peake, 93. “I do not consider myself to owe A farthing, it being more than six years since I contracted.” 4 East. 599. These are some of the acknowledgments held sufficient. These cases are not now considered as authority. Many other changes of the judicial current might be cited illustrative of the position that the declaration of what the law is rests in the sound, conscientious judgment of the court; the weight to be allowed to prior determinations depending altogether upon the circumstances the case. A recent decision, which has not been frequently recognised nor grown into a landmark, is not entitled to so much respect as one of older date, of which such a remark may be predicated. Hardly a modern report-book appears in which some prior case is not found in express terms overruled. A court or judge
The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, vut are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides, and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain the records, which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of king Edward the Second inclusive; *72]
and from this time to that of Henry the *Eighth, were taken by the pro
thonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day; for, though king James the First, at the instance of Lord Bacon, appointed two reporters(r) with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of Henry the Eighth to the present time this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valuable of the ancient reports are those published by Lord Chief-Justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed, that they are generally cited without the author's name.(8)
Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde,12 with some others of ancient date; whose treatises are cited as authority, and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, *73]
is the *same learned judge we have just mentioned, Sir Edward Coke;
who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title.
Pat, 15, Jac. I. p. 18, 17 Ryın. 26.
in his three volumes were determined; viz. Queen Elizabeth, IIis reports, for instance, are styled xar' efoxnv, the King James, and King Charles the First; as well as by the reports; and, in quoting them, we usually say, 1 or 2 Rep., number of each volume. For sometimes we call them 1, 2, not 1 or 2 Coke's Rep. as in citing other authors. The re and 3 Cro. but more commonly Cro. Eliz., Cro. Jac., and Cro. ports of Judge Croke are also cited in a peculiar manner, by Car. the names of those princes in whose reigns the cases reported
ought to be very cautious even in regard to recent cases, much more in regard to older ones, es pecially such as have been subsequently recognised and acted on. It is best to err on the safe side ; and the safe side is stare decisis.-SHARSWOOD.
12 The works of these authors are distinguished by the following titles :-"Glanvil'e Treatise of the Laws and Customs of England," written in the time of Henry II., edit. 1780; " Bracton's Treatise of the Laws and Customs of England,” written in the reign of Henry III., edit. 1569; “ Britton, corrected by Wingate,” edit. 1640; “ Fletzt, or a Commentary upon the English Law," written by an anonymous author (a prisoner in the Fleet) in the time of Edw. I., with a small Treatise, called “ Fet Assavoir, annexed, and Mr. Selden's “ Dissertations,” edit. 1685; “ Hengham, (Chief-Justice of the King's Bench in the time of Edw. I.] Summa Magna and Parva, treating of Essoigns and Defaults in Writs of Right, Writs of Assize and Dower, &c.,” which is printed with Fortescue de Laudibus Legum Angliæ,” edit. 1775; “ Littleton's Tenures," various edits. “Statham's Abridgment, containing the Cases down to the End of Henry VI.:” only one edit., without date; “ Brooke's Grand Abridgment of the Law," 1573; “Fitzherbert's Grand Abridgment of the Law.” 1665 ; “Staundforde's Pleas of the Crown," to which is added an " Exposition of the King's Prerogative,” 1607.-Cutty.
The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward the Fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method.(t) The second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts.(u)
And thus much for the first ground and chief corner-stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decis.ons are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.
The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest(y) will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. “For since, (says Julianus,) the written law bunds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind everybody. For where is the difference, whether the people declare their *assent to a law by suffrage, or by a uniform course of acting accordingly.?” Thus did they reason whilo Rome had some re
[*74 mains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. “Quod principi placuits legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem con. ferat," says Ulpian.(w) Imperator solus et conditor et interpres legis existimatur," says the code.() And again,“ sacrilegii instar est rescripto principis obviari.” (y) And indeed it is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.
(6) It is usually cited either by the name of Co. Litt. or as and other tracts being quoted in the name of the comples, 1 Inst.
as 2 Ventris, 4 Leonard, 1 Siderfin, and the like. (5) These are cited as 2, 3, or 4 Inst. without any author's (*) P. 1, 3, 32. name. An honorary distinction, which, we observou, is paid (*) Ff. 1, #, 1. to the works of no other writer; the generality of reports (7) 01, 14, 12.
(v) C. 1, 23, 5. 13 This is the first sentence of the definition of a constitution in the beginning of the Institutes. It ought to be cited at length, that it may receive the execration it deserves. It is no wonder, from this specimen, that the civil law should have experienced such protection and patronage from all the despotic governments of Europe, and such opposition and detestation from the sturdy English barons.
CONSTITUTIO.--Sed et quod principi placuit, legis habet vigorem : quum lege regia, que de ejus imperio lata est, populus ei, et in eum omne imperium suum et potestatem concedat. Quodcunque ergo imperator per epistolam constituit; vel cognoscens decrevit, vel edicto præcepit, legem esse constat; hæc sunt, quæ constitutiones appellantur. Planè ex his quædam sunt personales, quæ nec ad Exemplum trahuntur quoniam non hoc princeps vult, nam quod alicui ob meritum indulsit, vel si quam pænam irrogavit, ve si cui sine exemplo subvenit, personam non transgreditur. Alice autem, quum. generales sint, omnes procul dubio tenent. Inst. 1, 2, 6.-CHRISTIAN.
14 Lord Chief Justice Wilmot has said that “the statute law is the will of the legisla ture in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. (2 Wils. 348.) And statute law, and common law, both originally flowed from the same fountain.” (Ib. 350.) And to the same effect Lord Hale declares “that many of those things that we now take for common law, were undoubtedly acts of parliament, though now not to be found of record.” (Hist. Com. Law, 66.) Though this is the probable origin of the greatest part of the common law, yet much of it certainly has been introduced by usage, even of modern date, which general convenience has adopted. As in the civil law, sine scripto jus venit, quod usus approbavit, nan diuturni mores consensu wentium comprobati legem in-ntur. (Inst. 1, 2, 9.) Of this nature in this country is the law
II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts.
These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large : which privilego is confirmed to them by several acts of parliament.(2)
Such is the custom of gavelkind in Kent, and some other parts of the kingdom, (though perhaps it was also general till the Norman conquest,) which *75]
ordains, among other things, *that not the eldest son only of the father
shall succeed to his inheritance, but all the sons alike; and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord. Such is the custom that prevails in divers ancient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs, that a widow shall be entitled, for her dower, to all her husband's lands; whereas, at the common law, she shall be endowed of onethird part only.-Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors.—Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns, the right of holding which, when no royal grant can be shown, depends entirely upon immemorial and established usage.-Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to thé general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament.(a)
To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it;(6) being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that “ cuilibet in sua arte credendum est."'15
(7) Mag. Cart. 9 Hen. III. c. 9.-1 Edw. III. st. 2. c. 9.-14 Edw. III. st. 1. c. 1.-and 2 Hen. IV. c. 1.
() Winch. 24.
of the roud, viz.: that horses and carriages should pass each other on the whip-hand. This law has not been enacted by statute, and is so modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience discovered the necessity of it, and our judges have so far confirmed it, as to declare frequently, at nisi prius, that he who disregards this salutary rule is answerable in damages for all the consequences.
The action in which this rule is applied, viz.: for negligently driving a carriage, by which any one is injured, is as ancient as the common law; but the uniform determination of the judges that the non-observance of this rule is negligence is of modern date.
It is now decided, that, where an injury is done by a man's driving his carriage on the wrong side of the road, the action must be trespass, vi et armis. Lord Ellenborough and the court laid down generally, that, where there is an immediate injury from an immediate act of force, the proper remedy is trespass, and wilfulness is not necessary to constitute trespass. 3 East, 593.
When two carriages meet, the impact is a reciprocal act of force; but the force of that only is wrongful which is on the wrong side of the way.-CHRISTIAN.
It should be remembered, however, that, when the carriage is driven by a servant, the action against the master must always be trespass on the case, unless, indeed, the wrong was committed by the immediate command of the master. -SHARSWOCD. 15 The lex mercatoria, or the custom of merchants, like the lex et consuetudo par kamenti,