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be taken with its restrictions and limitations; and the instances are not few or unimportant, in which former rules have been set aside and old precedents abandoned. In what we have been saying, it has been taken for granted that the case to be decided had actually a right and a wrong side; but it is clear that there must be matters in which it is not of so much importance how the law is fixed, as that it should be certainly fixed; and in all such cases we should expect to find the judges adhering steadily to that which they might have found in use, without regarding any other consideration than the desire of firmness and stability. This would be likely to happen in all matters merely formal, and especially in what relates to practice, and the whole machinery of the law and the administration of justice. It would also happen in many matters relating to the holding, transmission, descent, and alienation of real estate, and the various rights and hereditaments growing out of and connected with it. Hence it is that the science of pleading has been encrusted over with so much that is dry and repulsive, and that the English system of real law has become so subtle, so complicated, and refined. If these remarks are correct, we shall have a rational foundation for the following principles, which, if we do not deceive ourselves, may be taken for fundamentals in the formation of legal judgments: 1st. No point is to be decided, except those which are absolutely necessary for settling the case in hand; 2d. A previous decision is to be considered binding on the court—unless, 3d. It is so manifestly contrary to justice that it cannot be law—or 4th. Such changes in society, manners, and social relations have taken place, that what was once good law is no longer applicable; and, therefore, either exceptions are to be made to the general rule, or the reasons of the rule having wholly disappeared, the rule goes with them,-excepting
5th. Those cases in which, as in the law of real property, the security of rights already acquired requires that the law should remain unchanged, or in which, as in certain matters of practice, it is of more consequence that the rule should be certainly fixed, than that it should be fixed in any particular manner.
It of course will not be understood that we have pretended to make a complete analysis of the science of legal judgments;–the object was merely to indicate certain of the most general and leading doctrines, by way of inducement to what else we might have to say; and we have thought that a very general statement would answer the purpose.
But in the history of the common law, it has happened that the law, as deduced from the sense of justice, morality, and religion of the judges, did not always conform to the policy of the state, and to the interested views of those powerful men, who, by right or wrong, as the case might be, ruled the nation. We speak now of the earlier periods of our legal history. We in these days recognise a distinct law-making power. In this country it is the people acting through their constitutional agents—just as the law-applying and declaring power of the people is exercised by means of other constitutional agents, whom we call judges. But once these distinctions were not so clearly recognised as they are now, and it would seem to have been practically held, that the king in his court might as effectually declare law, as in his parliament. The earlier kings of the Norman dynasty were generally able as well as willing to take from the shoulders of the people to their own pretty much all the burthen of governing the state. The judges, moreover, of the king's court, were probably men who had more sympathy with popular rights, than the haughty and selfish barons of the Norman conqueror and his successors; and, sometimes, when the interests of the king and the nobles were at variance, the judges who were dependent on the king would be likely to favor the views of their royal master. It is not unlikely that from these causes, there would be many occasions on which the courts of common law would be at variance with the legislature so called, and would strive in every way to thwart and render ineffectual the legislation of the latter. One of the most memorable of these struggles was that concerning the alienation of estates tail, and the operation and construction of the famous statute de domis conditionalibus. Fortunately for England and the world, when the decision of the famous Taltarum's case was made, that a tenant in tail might, by means of a common recovery, completely alienate his estate, and bar not only the estate tail and remainder, but the reversion, the nobles were too much occupied with the bloody and fatal quarrels of the roses, and their destructive consequences, to think of their judicial functions and to be sitting as a court of errors to reverse the insidious decisions of the judges. The Tudor line, who came to the throne soon after, had more at heart the impoverishment and weakening of the nobility, than the commons. They seem to have thought, that the aristocracy of England was the only obstacle to their absolute power, and that the commons might be ground to powder at their leisure; a mistake which the haughty and imperious, but far-sighted Elizabeth, probably became conscious of in her last days, but which kept the weak, treacherous, lying, mean, and miserable Stuarts, in trouble, till at last the nation indignantly rose and spurned them from the throne, which they had too long disgraced. It was, however, probably owing to this jealousy of the nobility, that under the statute of fines, and the decisions concerning common recoveries, the statute de donis was deprived of most of its power to do harm, and the landed property of England was again set free, for the purposes of trade and commerce. Unfortunately, the records of the eloquence of the English bar of those days are scanty, and we have no means of knowing the line of argument, which was adopted by the great constitutional lawyers of the time. Doubtless, the evils of tying up the landed property of the kingdom must have first manifested themselves to the judges and lawyers; who, as conveyancers and judges of the effect of conveyances, must often have seen the prodigal scions of aristocracy setting at defiance their honest creditors, and revelling in the wealth which in fact ought to be in the hands of others. They must too have seen the general enervating effect, which such a system of real law would gradually produce in almost every branch of trade and industry, and the general demoralization which must be expected to follow from it. Were these topics labored by the Erskines and Websters of those days, or did they rather shield themselves behind technicalities, and argue learnedly that as the vouchee was bound to render equivalent lands to the heirs or reversioners, so there could be no wrong to the latter, using that most satisfactory of modern legal quibbles, that he is not legally damnified who has a remedy over, even though that remedy over be against a bankrupt. We acknowledge with sorrow that we are not familiar with the year books, those venerable repositories of the law and legal subtilties of by-gone days. We have often heard that they were not worth the labor of digesting or even indexing, much less of translating; and yet every now and then, some persevering prowler among legal antiquities drags to light a case, full of strong sense and sound law, and shewing that the lawyers of those days were well able to build the substructures of that noble science which has since been raised upon their labors. For our own part, we shall never consider the lawyer's library complete, till the hidden stores of the Year Books have been made more accessible.
We have attempted to give a general, though perhaps, somewhat rambling, sketch of the manner in which the common law has grown up, and of the various and sometimes discordant elements of which it is composed. How has it been preserved? Where has it been kept? Has it been transmitted down through the breasts of the judges, by some mysterious process of transmigration—or have the courts been, as it were, corporations, yet endowed with a sort of legal soul, which has partaken of the hypothetical immortality of its corporate possessors, and so flourished on from age to age, beaming out the light and warmth of the law, upon those who have sought its protection ? Puzzling questions these, and which we do in no manner undertake to answer. One fact is certain—and that will answer our present purpose. There do now exist, and there have for many ages existed, certain books which by a certain tacit convention are agreed to contain authoritative evidence of what the law is, and was. Among old books there are Glanville and Bracton, Britton and Fleta, the year books, Littleton's treatise on tenures, and sundry others, which need not be mentioned—all venerable tomes much talked of, and little read. In more modern times, we have Coke's first Institute, and a few other commentaries and text books, which have been elevated by common consent to the dignity of authorities, and a multitude of Reports, of various degrees of authenticity and credit. Among these works by far the most remarkable is Coke's first Institute. Coke lived at a very remarkable period, when the old feudal institutions of England were just becoming obsolete, and dying out by a natural death, and at the same time the commercial spirit and genius of the English nation was beginning to manifest and develope itself. Coke himself was a wonderful, and to us an unfathomable man; his prodigious memory was charged and surcharged with all the learning of the law, and yet his ponderous learning,