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difficulty, by requiring evidence, and by establishing rules for determining what evidence shall be sufficient. Honest men, in general, hold themselves to be quite capable of discovering, by the intuitive sagacity of their own judgment, which statement is true, and which false, without any evidence whatever, or at least, by the aid of a very lame probation. The next difficulty which an arbitrator experiences is, to discover a principle in reason, by which to regulate his judgment, so that impartial men may be capable of perceiving why he decides as he does, and that the parties themselves may see that justice has been done to them. In courts of law, certain rules which have been derived from a comprehensive survey of human affairs, and much experience, are taken as the guides of the understanding in such circumstances. These are called rules or principles of law. They do not always possess the characteristics of wisdom which I have here described, nor are they always successfully applied; but the objects aimed at, both in framing and applying them, are unquestionably truth and justice. Yet honest men, judging according to equity, too frequently treat all such rules with contempt, assume their own feelings to be better guides, and conceive that they have dispensed absolute justice, when they have followed the dictates of their own understandings, unenlightened, inexperienced, and sometimes swayed by many prejudices. I recollect a decision of this kind, which astonished both parties. A trader in Edinburgh had ordered a cargo of goods from Liverpool, according to a description clearly given in a letter. They were sent, and invoiced according to the description. When they arrived, it was discovered that they were greatly inferior, and even some of the articles different in kind from what were ordered; and also that they were faded, and on the point of perishing through decay. The purchaser refused to receive them; the seller insisted; and the question was referred to an honest man. He decided that the goods were not conformable to the order given, and that the purchaser was not bound to receive them; but he nevertheless condemned the purchaser to pay the freight from Liverpool, and all the expenses of the arbitration; and assigned as his reasons for doing so, that he, the arbitrator, was not bound by rules of law, but was entitled to act according to equity; that the seller would sustain an enormous loss, by disposing of the cargo at Leith for what it would bring; that the purchaser had escaped a ruinous loss, by being allowed to reject it; and that, therefore, it was very equitable that the purchaser should bear a little of the seller's burden; and that the freight and costs formed a very moderate portion of the evil to be sustained by him. He added, that it would teach the purchaser not to order whole cargoes again, which he thought was going beyond the limits of his trade; besides, it was a very dangerous thing for any man to order a whole cargo, especially when he had not seen the goods before they were shipped. Perhaps some persons may be found, to whom this may appear to be a very just judgment; but to every one acquainted with the principles of trade, and who perceives that the seller's bad faith, or unbusiness-like error, was the sole cause of the evil, it must appear, at best, as a well intended absurdity, if not a downright iniquity. I know another case, in which the arbitrator found himself much puzzled, and resorted to this method of solving the difficulty: He called the two parties, Mr. A and Mr. B, to meet him in a tavern, and placed them in separate rooms. He then went to Mr. A, and told him that he had seriously read all the papers, and considered the case, and had come to the conclusion that he, Mr. A, was entirely in the wrong, and that he meant to decide against him, and had called him and Mr. B to meet him, to try if it were possible to negotiate a compromise between them, to save him from the disagreeable necessity of pronouncing such a decision. He concluded by asking Mr. A what was the largest sum that he would voluntarily offer, to avoid the impending decision. Mr. A, after expressing his surprise and disappointment, and arguing his case anew, which argument was heard patiently, and pronounced to be unsatisfactory, at last named a sum. The arbitrator proceeded to the room in which Mr. B was waiting, and told him that he had studied the case, &c., and was extremely sorry that he regarded him as completely in the wrong, and meant to decide against him; but as he had a regard for him, he begged to know the smallest sum which he was willing to accept of, if Mr. A could be induced to offer it, as an amicable compromise, to save him the pain of pronouncing such a judgment. Mr. B. argued, and was listened to ; his arguments were repelled, and he was again solicited to name a sum, under pain of having a decision immediately pronounced, which would deprive him of all. He at last named a sum. There was a wide difference between the sums named; but the referee was not to be defeated; he went backward and forward between them, constantly threatening each in turn with his adverse decision, till he forced the one up and beat the other down, so that they at last met; and then, keeping them still apart, he caused each of them to subscribe a binding letter of compromise. This accomplished, he introduced them to each other, and boasted of the equity of his mode of settling the dispute. One practical remark which I beg leave to offer on the subject is, that the education of lawyers should embrace more instruction in the business affairs of the world than it does, and that the education of practical men should include some information concerning those great principles of law which have been found, in an extensive series of instances, to lead most successfully to justice. In this way, the lawyer would be better guided, by the knowledge of business, both in framing and applying his legal rules, while the mercantile arbitrator would enjoy the advantage of profounder principles to assist his judgment; and a purer administration of justice by both public and private tribunals would probably be the beneficial result.


Commentaries on American Law. By JAMEs KENT. In four volumes. Fourth edition. New York: Printed for the author, 1840.

Law has been many times called a practical science. It might also be called an experimental science—for it is always to a certain degree tentative, and may be and often is changed, if its rules are found not to work well when practically applied. Among the general principles of the common law, or rather perhaps the sources from which it is drawn, have been mentioned the following: The law of nature; the revealed law of God; christianity, morality, and religion; common sense, legal reason, justice, natural equity, humanity. Doubtless the originals of the common law are to be sought far back in the institutions and customs of our Anglo Saxon ancestors—but it is equally true that under the English system of jurisprudence those originals have grown and widened out, so as to satisfy all the wants and meet the exigences of the most refined and advanced civilization. Now it is obvious that a system of arbitrary rules, prospectively enacted by the sovereign authority, could never possess the elasticity essentially necessary for this. A system which should leave the law in the breast of the judge, till the occasion arose on which it should be declared, and then apply the principles of morality, religion, and humanity, to the solution of the problem, seems the only one capable of producing such a result. Such a system, the English common law may in general terms be affirmed to be. To be sure, when the facts of a case had once been presented, and a decision of the court had upon them, it would be natural for suitors, or at the least their counsel, to adduce in support of their case former decisions of the court to that effect; and equally natural for the court in most instances to be guided by their former decisions, and so the maxim stare in decisis would soon be recognised, and gradually acquire the form of a binding law. Nor would this, in ordinary cases, lead to any hardship or injustice. The principles of justice are immutable, and a decision which was once right must always be right, when applied to exactly the same facts. But judges and lawyers certainly are not always perfect, and in those days when the commissions of judges were at the pleasure of the king and his favorites, and lawyers had to hope for promotion from the suppleness with which they bent themselves to the crooked designs of powerful knavery, it must necessarily happen that the ermine of justice would be soiled, and the sergeant's coif be made to cover a multitude of sins. Hence it has happened, that many decided points have been spoken of by succeeding courts, as being contrary to common sense, unjust, and unreasonable, and so not law ; and a judge has said from the bench, “I will never be influenced by a judgment, that is founded either in fear or favor.” Besides, though the facts of the particular case may be the same, it may be that the condition of society may be materially different, and so the collateral facts, all of which must have their bearing, may be so different, as to require a different decision and the introduction of a new principle, or an exception or important modification of an old one. For both these reasons and perhaps for others, the maxim of stare in decisis must

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