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What he said was spoken in the year nineteen of the third Edward. England was still feudal England; the language of the land was still French; it was taught in her schools and spoken in her courts, where it was to persist as a living language for a long time to come, and to fix itself indelibly into the structure of the legal language of England. So in that year and among that group of lawyers and justices sitting in Hillary Term to decide a somewhat troublesome point, there was no question as to the use of any other tongue. Had they been asked to plead in any other language they would doubtless have been sorely tried. All their words of art were in that tongue, and they would have inevitably fallen back upon their well-known phrases had they tried to speak in any other. In that year of 1345, when they were tirelessly trying to unravel the tangled threads of interwoven rights, they would have shrunk from pleading in English much as the opera star of to-day shudders away from the suggestion of singing in such an inartistic medium.
Before Stonore can be brought forward we must introduce Hillary, who was sitting on the bench with Sharshull, and with Stonore as Chief Justice. Hillary, justice, says to Birtone, who is of counsel: “You say what is true; and therefore demandant, will you say anything else to oust him from being admitted * R. Thorpe: “If it so seems to you, we are ready to say what is sufficient; and I think you will do as others have done in the same case, or else we do not know what the law is.” Hillary: “It is the will of the justices.” Stonore: “No, law is that which is right.”
“Now, that is the translation of the case given in the Rolls Series of the Year Books." The words actually used by Stonore were: “Nanyl, ley est resoun,” and while Mr. Pike, the learned editor and translator of that volume of the Year Books, has a perfect right to translate “resoun * as “right,” and will be upheld by the dictionaries in doing so; yet, if it is contended that Stonore did not mean to say that law is “right,” but that he meant to say that “law is reason.” there can be little dispute but that one is equally right, and the dictionaries will be quite as accommodating. Let us look at this question a moment. Thorpe is arguing in the manner of the blustering pettifogger, the conservator of things as they are, that his opponent will “do as others have done in the same case.” Hillary, justice, seems to see in this remark of Thorpe's a slur of some sort and instantly counters with the plain remark that “it is the will of the justices,” apparently meaning that when we do know what the law is, we know that it is their will. That has an extremely modern appearance; it looks as if there were people even then who calmly assumed that the common law was without any thing to guide it but the will of those upon the Bench—judge-made law with a vengeance!
* Y B. Rolls Series, 18 and 19 Ed. 111, pp. 378-379.
But in Stonore we meet with material of a different type. He does not leave a moment for the theory of his companion to sink into the minds of counsel or spectator; he speaks immediately and with a certain tone of assured authority: “Nanyl, ley est resoun.”
Now what did Stonore really mean when he said “Ley ess resoun?” It is of interest for us to know, for if we are to know what the common law really is, we must go back and find out what those who had its making in their hands thought of it, and how it worked out through all those early centuries of its growth into what we find it to be now. Had Stonore alone simply uttered his “Nanyl, ley est resoun,” it would probably have occurred to no one to doubt the accuracy of the translation of the phrase into “law is right,” and it would have been of little value to any discussion as to what our law is. But this matter comes up again and again in the Year Books, and the phrase that Stonore used here seems to have been that well-known maxim of the law, afterward paraphrased and used by Coke. In the course of time, we find Wampage using it in a case in the fourteenth year of Henry Sixth.” The case that is being argued has been a difficult one, and it has been argued and adjourned, and reargued until it seemed that there was but little hope of getting out of the petty tangles of involved precedent unless something higher and more authoritative was mooted ; and this something that Hillary seized on was that old maxim which Stomore had used in 19 Ed. 111. “El Sir, le ley est fond de reson, et ceo que resoun est ley.” Now, surely Wampage meant to say, “Sir, the law is founded upon reason, and that which is reason is law.” It is the very phrase that Coke used when he said:
*Y. B. 14 Hen, IV, p. 19, pl. 60, see page 21, for the remark of Wampage.
“Reason is the life of the law, nay the common law it. self is nothing else but reason; which is to be understood of an artificall perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason; for, Nemo nascitur artifer. This legall reason is summa ratio. And therefore if all the reason that is dispersed into so many severall heads, were united into one, yet could he not make such a law as the law of England is.”
They are all using the same word, and so were many other of the old lawyers, to denote what? Pure justice, or what we call “right,” or that “reason " which Coke called the life of the law It seems the latter, for the judges, while earnestly seeking that right should be done, did not mean that justice which might well be called the will of the justices, and which might be meted out by a benevolent judge, doing what he believed to be right, but that higher and finer right which is founded upon the reason of the law.
Well, and what then? Is it of any great importance to us what Stonore said, and Wampage thought; and do we not all know the ancient maxims of the worthy but archaic Coke? Was Coke not crabbed as well as worthy, and did not Wampage have precedent against him when he retired upon his general maxim ; and Stonore, well, who was Stonore that we should stop in these busy days and hear what he had to say? What does it matter to us? Thus much it matters. If Stonore had not been able to say it, and without effective contradiction; if it had not been a recognized and fundamental maxim of our law through all those dark, or dim, or palely lighted centuries, when the common law was shaping the life of England and being shaped by it, we should have to follow the current course of criticism of the common law; we should have to grant that the common law of to-day is defective because of uncertainty; that it is a chaos to which our legal scholars have no clue; that those great foreign states which have worked out consistent codes have a scientific body of law for which we have no parallel. The Thorpes of to-day are legion; they do not know what the law is unless it is to do as others have done in the same case. The decided case decides all; we depend not on justice or reason, and as the years go on Similievitch v. Almansour, 1179 Pa., and The United States v. The Flying Icelander, 979 U. S., will be decided according to the will of the Justices, for the precedents will be too many to examine and there is nothing else. If it be true that the decided case is all that we have to assist us, that it must be followed in all instances, whether or not it be based on false reasoning or on fallacious principles; if it diverges diametrically from all former cases that have been decided upon well-based reasons and the long continued and well thought out course of the law in such cases; then we should indeed have cause to wonder that the common law ever got past its first century, and became a system of law for all English-speaking people. But we have not answered the question as to Stonore. Let us look at his record for a moment in passing, because we may as well know what sort of a man he was, and if he were likely to adopt a foolish theory to bolster up a weak bench. He was not a man whose fame has come down to us through the centuries; the reputations of those worthies of the Year Books have grown dim in these last years, while the Year Books themselves have sat dumbly on the shelves and seen men go seeking all about them for the wisdom they could have imparted had they had the power to reach out and claim the attention they deserved. Stonore was not among the great ones, and he is not here cited for his great authority, but yet he is one whose name occurs very frequently, and who helped to shape the law of his day. He was named John, a good old common name (to be sure it was “de” Stonore, which lifts him from the common mass again), in the County of Kent, or may be in Oxfordshire—the authorities are in doubt. The important fact remains that he was born in time to figure extensively as an advocate in the time of Edward the Second, and had become so important in the year six of that king as to be summoned to assist at the Parliament for that year. He prosecuted and defended suits for the king, and so we find him a Parliament man and a king's man as well; not too much of a commoner after all, a good royalist and busy doing the king's business. October 16, 1320, he was constituted a Justice of the Common Pleas. The authorities differ as to his career at this point, but they seem agreed that he continued as Justice of the Common Pleas until the end of that reign and was re-commissioned by Edward III. shortly after he came to the throne. Later he became Chief Baron of the Exchequer (in 1329) and Chief Justice of the Common Pleas later in the year. With the exception of one or two years, he retained that honour, and died Chief Justice of the Common Pleas, in 1354, leaving, as is reported, “ large possessions in nine counties.” It seems, therefore, that the man was of some standing in the land and in the law; that he was no mere theorist, no dreamer of dreams, no student merely. On the whole a rather practical, hardheaded man of the world, who won honours and kept them— though the hold may have been precarious at one or two points of the game— and who died, even though he said, as Mr. Pike declares he did, “Not so, law is right,” “leaving large possessions in nine counties.” We have here, it would seem, a man as canny as Coke himself, yet to him “ley est resoun,” as we would claim that it is to-day; and we would claim, as the dictionary allows us to claim, that the law is reason, and that it is right also. For, for what purpose can any system of law claim to be established? Is it not for the regulation of the relations between nations, so that justice may be done to each; and for the regulation of the relations between individuaks so that justice may be secured to all? Is it not simply for that and for nothing more? And how can that object be attained more simply, more easily, and more surely, than by working out the system by which such regulation may be set to work through the acquired experience and the accumulated knowledge which is attained by the practical use of those regulations in the courts, where they are tried by every practical and theoretical test? No system of law was ever worked out in any other way; but we are told to-day that chaos comes unless we crystallize the results and form a logical scientific system, thoroughly thought out, and apply it to the common law which is the root of all systems, It seems true enough on the surface—it seems obvious; therefore it is to be distructed, for the obvious is usually the untrue. The critics of the present day who attack the Common Ilaw seem to forget that it has more than one attribute; they claim that it places its whole reliance upon precedent; that it must follow all precedent slavishly—and there they leave it, with its one attribute attacked and defeated, as they most complacently imply. It would seem that this point of view could not be seriously advanced and adhered to by thinking men, if we had not written evidence before us in a multitude of articles, monographs, papers, and after dinner speeches which have been