LECTURE XXI.
OF REPORTS OF JUDICIAL DECISIONS.
HAVING considered the nature and force of written law, and the general rules which are applied to the interpretation of statutes, we are next to consider the character of unwritten or common law, and the evidence by which its existence is duly ascertained.
The common law includes those principles, usages, and rules of action applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. According to the observation of an eminent English judge, (a) a statute law is the will of the legislature in writing, and the common law is nothing but statutes worn out by time; and all the law began by the consent of the legislature. (x)
(a) Lord Chief Justice Wilmot, 2 Wils. 348, 351.
(x) Judge Dillon, in his Laws and Jurisprudence of England and America, pp. 19, 381, says: "Legislation belongs to or is a branch of ethics; the legislator in the exercise of the function of legislation not only regards ethical considerations, but such considerations are generally the foundation or animating principle of his enactment. In modern times the judicial and legislative functions are not only discriminated, but separated. Yet the separation, while theoretically complete, is perhaps never actually so; and therefore judges, in and by the very exercise of their duty of adjudication, are obliged in many cases, where the legislative will is silent and the case is novel, to legislate.... The evolution of our law impresses me with
the conviction of the general truths which underlie the leading doctrines of Savigny and the historical jurists; namely, that law is largely the outcome of all of the past conditions, circumstances, and customs of a people; that it ordinarily originates in or is introduced by custom (using this word in the broad sense of including judiciary law), and is supplemented by legislation, direct or oblique, when, and in general only when, the law is otherwise inadequate to meet difficult and complex or new situations and exigencies."
In an address before the American Bar Association at Saratoga Springs in August, 1888, Hon. George Hoadley said (38 Albany L. J. 165): "The duty to strive for an ideal jurisprudence, for a perfect
l. Source of the Common Law. — This is laying down the origin of the common law too strictly. A great proportion of the rules
procedure, is of perpetual obligation.... Lawyers live too often intellectually in England only, and not in the world. They are provincial, not cosmopolitan.... No one can overestimate the value of historical research. But the case lawyer, in using historic examples as patterns on which to fashion, or moulds into which to run, the conduct of our present and future lives, is trying to turn time backward and arrest the progress of man. The real student of legal history reads it with eyes open to the faults as well as to the merits of the past. But, with the case lawyer, a case in point once found, excludes all argument to the contrary, and the only appeal is to the legislature, and this of course without benefit to the suitors in pending controversies.... The result is practically that individuals provide laws for the community, not the community for individuals.... The progress of mankind is marked by the conversion of the unwritten into written law by the crystallization of the uncertain into the definite."
In Pollock and Maitland's recent and valuable History of English Law it is said in the Introduction: "The philosophical analysis and definition of law belongs, in our judgment, neither to the historical nor to the dogmatic science of law, but to the theoretical part of politics.... The matter of legal science is not an ideal result of ethical or political analysis; it is the actual result of facts of human nature and history. Common knowledge assures us that in every tolerably settled community there are rules by which men are expected to order their conduct. Some of these rules are not expressed in any authentic form, nor declared with authority by any person or body distinct from the community at large, nor enforced by any power constituted for that purpose. Others
are declared by some person or body having permanently, or for the time being, public authority for that purpose, and, when so declared, are conceived as binding the members of the community in a special manner. In civilized states there are officers charged with duty and furnished with the means of enforcing them. Of the former kind are the common rules of morals and manners, in so far as they do not coincide with rules of law. We shall find that iri England, as elsewhere, and in times which must be called recent as compared with the known history of ancient civilization, many things were left to the rule of social custom, if not to private caprice or uncontrolled private force, which are now, as matter of course, regulated by legislation, and controlled by the courts of justice.... Our laws have been formed in the main from a stock of Teutonic customs, with some additions of matter, and considerable additions or modifications of form received directly or indirectly from the Roman system."
Common Law. — "We have long given up the attempt to maintain that the common law is the perfection of reason. Existing human institutions can only do their best with the conditions they work in. If they can do that within the reasonable margin to be allowed for mistakes and accidents, they are justified in their generation. Even their ideal is relative. What is best for one race or one society, at a given stage of civilization, is not necessarily best for other races and societies at other stages.
... The courts cannot contradict what has already been settled as law, but the power of taking up fresh material is still alive." Sir Frederick Pollock (Address at Harvard, 1895), 11 Law Quart. Rev. 328, 334; See also 10 id. 228; Holmes, Common Law, p. 2; 5 Harv. L. Rev. 172; 8 id. 328.
and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. (y) In the just language of Sir Matthew Hale, (b) the common law of England is, "not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation of many ages of wise and observing men." And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay. "Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us that new and unthought of emergencies often happen, that necessarily require new supplements, abatements, or explanations. But the body of laws that concern the common justice applicable to a great kingdom is vast and comprehensive, consists of infinite particulars, and must meet with various emergencies, and therefore requires much time and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such
(b) Preface to Rolle's Abridgment.
(y) In a lecture delivered before the Senior Law Class of the University of the City of New York, in April, 1894, Judge Charles P. Daly said (Pamphlet, pp. 21, 30) in approving this passage: "Accepting this as conveying a tangible idea of what it is, it may, as respects England, be said to be the whole body of the English law with the exception of that which has, since the beginning of the reign of Richard the First, been of parliamentary origin, and that which is administered in the ecclesiastical, equity and admiralty tribunals; although Blackstone (1 Bl. Com. 79, 80) and a later writer, Flintoff (Rise and Progress of the Laws of England and Wales, 2, 3), embrace, under the general head of
the unwritten or common law, the canon and the civil law, so far as either are admitted in English courts of ecclesiastical and admiralty jurisdiction; not, they say, because they were enacted or confirmed by imperial or papal authority, but because of their having been received and admitted by immemorial usage and custom, or the consent of Parliament. Blackstone does so, he says, after the example of Sir Matthew Hale.... The common law appears to have derived its name from the fact that it became the general law of the realm, as contradistinguished from local laws, that were different, but recognized as continuing in force, in certain localities."
are the common laws of England, namely, the productions of much wisdom, time, and experience." (c)
But though the great body of the common law consists of a collection of principles, to be found in the opinions of sages or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts, it is, nevertheless, true, that the common law, so far as it is applicable to our situation and government, has been recognized and adopted, as one entire system, by the constitutions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by the courts of justice, or declared by statute, with the like modifications, as the law of the land in every {473} state. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. (a) It is
(c) Cicero, in like manner, ascribes the excellent Institutes of the Roman republic to the gradual and successive improvement of time and experience; and he held that no one mind was equal to the task. Nostra respublica non unius esset ingenio sed multorum; nec una hominis vita sed aliquot constituta sæculis et ætatibus —
neque cuncta ingenia conlata in unum tantum posse uno tempore providere, ut omnia complecterentur sine rerum usu et vetustate. De Repub. lib. ii. 1. Nec temporis unius nec hominis esse constitutionem reipublicæ. Ib. 2, 21. The Roman system of law, says M. Valette, was not the result of philosophical theories conceived a priori, hut slowly elaborated by every-day experience, and conformed, under the influence of magistrates and jurisconsults, to all the necessities of society.
(a) Vide supra, 342, 343, and the opinions of Judge Chase, in the case of The United States v. Worrall, 2 Dallas, 394, and of M'Kean, C. J., in Morris v. Vanderen, and Respublica v. De Longchamps, 1 Dallas, 67, 111; Statutes of Pennsylvania, 1718, 1777; Laws of Vermont, c. 6, p. 57; Statute of North Carolina, 1778, c. 5; Revised Statutes of North Carolina, 1837, i. 110; State v. Rollins, 8 N. H. 550; Statute of South Carolina, 1712; Parsons, C. J., in Commonwealth v. Knowlton, 2 Mass. 534; Story, J., in Town of Pawlet v. Clark, 9 Cranch, 333; State v. Buchanan, 5 Harr. & Johns. 355, 356; McLearn v. McLellan, 10 Peters, 631, 635. The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning
also the established doctrine, that English statutes, passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country. (b) (x)
usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state.
(b) Patterson v. Winn, 5 Peters, 233; Sackett v. Sackett, 8 Pick. 309; Opinion of Cranch, C. J., in the case Ex parte Watkins, 7 Peters, [576, 577;] Bogardus v. Trinity Church, 4 Paige, 198; The Heirs of Girard v. The City of Philadelphia, 4 Rawle, 333, Gibson, C. J. Statute of North Carolina, 1778, and see the preface to the first volume of the Revised Statutes of North Carolina, 1837. About the year 1750, the general assembly of Rhode Island adopted the principal statutes of England relative to property and to the colony, from the statute of Merton down to the 4th and 5th Anne, c. 16. In Georgia, the principal English statutes relative to the essential
(x) See McKennon v. Winn (Okla.), 22 L. R. A. 501, and note. The general rule is that English acts of Parliament, when dealing with property in general, do not apply to foreign or colonial property. Colquhoun v. Brooks, 19 Q. B. D. 406; Jex v. McKinney, 14 A. C. 77; Pitt v. Dacre, 3 Ch. D. 295. But when the scope and purpose of an Imperial statute show that it was intended to affect a colony, and the words used are calculated to have that effect, it will be so construed. Callender v. Lagos, [1891] A. C. 460, 466. If Congress adopts the language of a foreign statute, it is presumed also to adopt the construction placed thereon by the local courts. Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263. So of statutes adopted by one State from another. Duval v. Hunt, 34 Fla. 85; Coffield v. State (Neb.), 62 N. W. Rep. 875; Everding v. McGinn, 23 Oregon, 15.
The common law is not presumed to be in force in the Creek nation. Davison v. Gibson, 56 Fed. Rep. 443. But as it is
the law of the Indian Territory, the Federal courts there sitting presume it to apply in the absence of evidence. Pyeatt v. Powell, 51 Fed. Rep. 551. In the absence of evidence as to the law of another State, whose jurisprudence is founded upon the common law, it is presumed to be the same as the common law of the domestic State in most jurisdictions. See, e. g., In re Hamilton, 76 Hun, 200; Brown v. Wright, 58 Ark. 20; Bollinger v. Gallagher, 144 Penn. St. 205; Scroggin v. McClelland, 37 Neb. 644; Mortimer v. Marder, 93 Cal. 172; Ufford v. Spaulding, 156 Mass. 65. As between the States of the Union, a cause of action which arose in one State, under the common law as there understood and administered, and which governs the conduct of the parties, may be enforced in another State by whose law it would not be a cause of action, if the variance in these laws does not amount to a fundamental difference of policy. Walsh v. New York & N. E. R. Co., 160 Mass. 571.
2. Force of Adjudged Cases. — The best evidence of the common law is to be found in the decisions of the courts of justice, conrights of person and property, from Magna Charta inclusive down to the period of colonial legislation in this country, have been copied and adopted almost literally. It gives the appearance of stability, dignity, and certainty to their statutory jurisprudence. Hotchkiss's Codification of the Statute Law of Georgia, 1845. The Revised Statutes of New Jersey, published in 1847, constitute a plain, practical, and excellent code of statute law, incorporating all the essential parts of the English and colonial statutes prior to our Revolution, applicable to our circumstances, and leaving the settled principles of the common law undisturbed, or more accurately defined. This has been done in several of the other states, with great ability, and under the same enlightened and chastened spirit of moderation. It was the same policy that dictated the statute revisions of New York, in 1801 and 1829. The rage for bold, reckless, and presumptuous innovation, so prevalent at this day, acting in contempt of the usages and wisdom of the common law, does not seem to have reached those statesmen who adopted the statute codes to which I have alluded. A new and improved digest of the statute law is quite a practicable and salutary reform, and is to be wholly distinguished from the visionary scheme and attempt to disturb and remodel the long-established institutions and usages of the whole body of the common law, as is now directed to be done by the revised constitution of New York, in 1846. (See infra, 475.) The Revised Statutes of Massachusetts, in 1836, furnish an instructive model of a revision of the statute law, with such arrangements and improvements as the reasonable spirit of reform dictated. Though I would rather prefer (perhaps from early prepossessions) the old and simple division of statutes into chapters and sections, with the title and date of each law, in historical and chronological order, to the complex subdivisions into parts, and titles, and sections, with interminable numbers, on the plan of the continental civilians. The Congress of 1774 claimed to be entitled to the benefit, not only of the common law of England, but of such of the English statutes as existed at the time of their colonization, and which they had by experience respectively found to be applicable to their several local and other circumstances. Journals of Congress, October 14, 1774. This was only declaratory of the principle in the English law, that English subjects going to a new and uninhabited country carry with them, as their birthright, the laws of England existing when the colonization takes place. Blankard v. Galdy, 2 Salk. 411; The Decision of the Lords of the Privy Council, 2 P. Wms. 75; Dutton v. Howell, Show. Parl. Ca. 81, 32; 1 Blackst. Comm. 107. See also Commonwealth v. Leach, 1 Mass. 60; Same v. Knowlton, 2 id. 534. The rule is different upon the conquest of a country; the conqueror may deal with the inhabitants, and give them what law he pleases, but until an alteration be made, the former laws continue. Calvin's Case, 7 Co. 17. The civil code of Louisiana, art. 3521, and the statute of that state of 1828, repealed the Spanish, Roman, and French laws in force when Louisiana was ceded to the United States. But it was held, in Reynolds v. Swain, 13 Louisiana Rep. 193, that this repeal only extended to the positive, written, or statute laws of those nations, introductory of a new rule, and not to those which were merely declaratory, and that it was not intended to abrogate those principles of law which had been established or settled by the decisions of the courts of justice. It was therefore the daily practice, in the courts of Louisiana, to resort to the laws of Rome and France, and the commentaries on those laws, for the elucidation of principles applicable to analogous cases.
tained in numerous volumes of reports, and in the treatises and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. (c) The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of the common law. Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel, and the labor of judges, are constantly required, in the study of the reports, in order to understand accurately their import, and the principles they establish. But to attain a competent knowledge of the common law in all its branches has now become a very serious undertaking, and it requires steady and lasting perseverance, in consequence of the number of books which beset and encumber the path of the student. (d) {474} The grievance is constantly growing, for the number of periodical law reports and treatises which issue from the English and American press is continually increasing; and if we wish to receive assistance from the commercial system of other nations, and to become acquainted with the principles of the Roman law, as received and adopted in continental Europe, we are in still greater danger of being confounded, and of having our fortitude subdued, by the immensity and variety of the labors of the civilians. (a) It is necessary that the student should exercise much
(c) In 1840, the legislature of Connecticut declared that the reports of the judicial decisions of other states and countries should be judicially noticed as evidence of the common law in such state or country.
(d) The number of volumes of English reports, exclusive of reports relating to the courts of admiralty, elections, settlement cases, and Irish reports, amount (1826) to 364; and to render their contents accessible, the digested indexes of the modern reports amount to 33 volumes. The text-books or treatises amount to 184 volumes, and the digests and abridgments to 67 volumes, making, in the whole, a copious library of 648 volumes, in addition to the statute law. See Humphreys on Real Property, 163. To these, we may add upwards of 200 volumes of American reports, treatises, and digests. In 1839, there were 536 volumes of American reports.
(a) M. Camus annexed to his Lettres sur la Profession d'Avocat a catalogue of select books for a lawyer's library, which he deemed the most useful to possess, and understand; and that catalogue, in the edition of 1772, included nearly 2,000 volumes, and many of them ponderous folios, and not one of them had anything to do with the English statute or common law. It is now a complaint in France, that the crowd of reports of decisions encumber the law libraries; and M. Dupin, in his Jurisprudence des Arrêts, ed. 1822, alludes to the immensity of such collections, and the great abuses to which that species of jurisprudence is subject. His select law library, for the use
discretion and skill in the selection of the books which he is to peruse. To encounter the whole mass of law publications in succession, if practicable, would be a melancholy waste or misapplication of strength and time.
{475} Lord Bacon, in the aphorisms annexed to his treatise De Augmentis Scientiarum, speaks of the necessity of a revision and digest of the law, in order to restore it to a sound and profitable state, whenever there has arisen a vast accumulation of volumes, throwing the system into confusion and uncertainty. He even made a proposition to King James, "touching the compiling and amendment of the laws of England," and offered his services "to compile a digest of the laws." The evils resulting from an indigestible heap of laws and legal authorities are great and manifest. They destroy the certainty of the law, and promote litigation, delay, and subtilty. The professors of the law cannot afford the expense and time necessary to collect and study the volumes, and they are obliged to rely too much on the second-hand authority of digests — ipse advocatus, cum tot libros perlegere et vincere non possit, compendia sectatur — glossa fortasse aliqua bona. (a)1 The period anticipated by Lord Bacon seems now to have arrived. The spirit of the present age, and the cause of truth and justice, require more simplicity in the system, and that the text authorities should be reduced within manageable limits; and a new digest of the whole body of the American common law, upon the excellent model of Comyns's
of law students and young advocates, contained 343 volumes. One great abuse in the practice of reporting is, that there is no very careful selection of decisions which are only worthy to be reported, but every adjudication, though upon commonplace learning, and upon points which have been again and again decided, is usually given in one promiscuous mass. Lord Bacon, in his proposition for the amendment of the law, wisely recommended "that homonymiæ, as Justinian called them, that is, cases merely of iteration and repetition, be purged away."
(a) Bacon's Aphorisms, De accumulatione legum nimia, Aph. No. 53-58; De novis digestis legum, Aph. No. 59-64; De scriptoribus authenticis, Aph. No. 78.
1 A short account of the different attempts at codification may be found in the Edinburgh Review for October, 1869, No. 258, reprinted among "Essays on the Form of the Law," by T. E. Holland, London, Butterworths, 1870. The subject is partially discussed by Mr.
Austin in his 39th lecture, and the notes at the end of his published works, and by Lord Westbury's speech of June 12, 1863. Hansard, clxxi. 776. [See also an essay on "The Proposed Codification of the Common Law," by James C. Carter, of New York City.]
Digest, and executed by a like master artist, retaining what is applicable, and rejecting everything that is obsolete and inapplicable to our institutions, would be an immense public blessing. (b) A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in {476} favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a
(b) In the Revised Constitution of New York, of 1846, art. 1, sec. 17, there is a provision made for the digest of the whole body of the laws of the state which makes it the duty of the legislature to appoint three commissioners, to reduce into a written and systematic code the whole body of the law of the state, or so much and such parts thereof as to the commissioners shall seem practical and expedient, and to report thereon to the legislature. The legislature is likewise to appoint three commissioners, who are to revise, reform, simplify, and abridge the rules of practice, pleadings, forms, and proceedings of the courts of record in New York, and report thereon. Art. 6, sec. 24. In England, the statute of 1 & 2 Vict. c. 110, empowered the judges to devise and frame the forms of writs to be used in the practice of the courts. This provision in the English statute shows wisdom in the selection of the agents who are to reform the practice, and a cautious moderation in guiding and limiting their discretion. The Report of the Commissioners appointed to revise the civil code of Pennsylvania, January, 1835, also showed much caution in touching the law of real property; and they appeared solicitous rather to expand and mould the old law and the old actions to existing circumstances and the state of society, than to abolish them. Their object clearly appeared to reform and not to innovate, and this is what good sense and sage experience dictate.
state of perplexing uncertainty as to the law. (a) The language of Sir William Jones (b) is exceedingly forcible on this point. "No man," says he, "who is not a lawyer, would ever know how to act; and no man who is a lawyer would, in many instances, know what to advise, unless courts were bound by authority as firmly as the Pagan deities were supposed to be bound by the decrees of fate." Throughout the whole period of the Year Books, from the reign of Edward III. to that of Henry VII., the judges were incessantly urging the sacredness of precedents, and that a counsellor was not to be heard who spoke against them, and that they ought to judge as the ancient sages taught. If we judge against former precedents, said Ch. J. Prisot, (c) it will be a bad example to the barristers and students at law, and they will not give any credit to the books, or have any faith in them. So the Court of King's Bench observed in the time of James I., (d) that the point which had been often adjudged {477} ought to rest in peace. The inviolability of precedents was thus inculcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period.
But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are more than one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it. Lord Mansfield frequently observed, that the certainty of a rule was often of much
(a) 16 Johns. 402; 20 id. 722; Lord Chancellor Parker, 1 P. Wms. 452; Ashhurst, J., 7 T. R. 419; Lord Tenterden, 3 B. & Ad. 17; Best, C. J., 3 Bing. 588; Cowen, J.,
23 Wendell, 341.
(b) Jones's Essay on Bailments, 46. (c) 33 Hen. VI., 41. (d) Cro. Jac. 527.
more importance in mercantile cases than the reason of it, and that a settled rule ought to be observed for the sake of property; and yet, perhaps, no English judge ever made greater innovations and improvements in the law, or felt himself less embarrassed with the disposition of the elder cases when they came in his way, to impede the operation of his enlightened and cultivated judgment. The law of England, he observed, would be an absurd science, were it founded upon precedents only. Precedents were to illustrate principles and to give them a fixed certainty. His successor, Lord Kenyon, acted like a Roman dictator, appointed to recall and reinvigorate the ancient discipline. He controlled or overruled several very important decisions of Lord Mansfield, as dangerous innovations, and on the ground that they had departed from the precedents of former times, and disturbed the landmarks of property, and had unauthorizedly superadded equity powers to a court of law. "It is my wish and my comfort," said that venerable judge, "to stand super antiquas vias. I cannot legislate, but by my {478} industry I can discover what our predecesors have done, and I will tread in their footsteps." The English courts seem now to consider it to be their duty to adhere to the authority of adjudged cases, when they have been so clearly, and so often, or so long established, as to create a practical rule of property, notwithstanding they may feel the hardship, or not perceive the reasonableness, of the rule. There is great weight in the maxim of Lord Bacon, (a) that optima est lex, quæ minimum relinquit arbitrio judicis; optimus judex, qui minimum sibi. The great difficulty as to cases consists in making an accurate application of the general principle contained in them to new cases, presenting a change of circumstances. If the analogy be imperfect, the application may be erroneous. The expressions of every judge must also be taken with reference to the case on which he decided; we must look to the principle of the decision, and not to the manner in which the case is argued upon the bench, otherwise the law will be thrown into extreme confusion. (b) The exercise of sound judgment is as necessary in the use, as diligence and learning are requisite in the pursuit, of adjudged cases. (c)
(a) Bacon's Works, ii. 448, Aphor. 46.
(b) Best, Ch. J., 2 Bing. 229; Marshall, Ch. J., 6 Wheaton, 399.
(c) M. Dupin, in his Jurisprudence des Arrêts, has given us many excellent rules
Considering the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should {479} not exhibit deep traces of the progress of society, as well as of the footsteps of time. The ancient reporters are going very fast, not only out of use, but out of date, and almost out of recollection. The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law, and the most judicious application of the abstract and eternal principles of right to the refinements of property. They are likewise accompanied by illustrations best adapted to the inquisitive and cultivated reason of the present age. But the old reporters cannot be entirely neglected, and I shall devote the remainder of this lecture to a short historical review of the principal reporters prior to the present times. No one ought to read a book, said M. Lami, (a) (and the remark has peculiar application to law books) unless he knows something of the author, and when he wrote, and the character of the work, and the character of the edition.
The division line between the ancient and the modern English reports may, for the sake of convenient arrangement, be placed at the revolution in the year 1688. The distinction between the old and new law seems then to be distinctly marked. The cumbersome and oppressive appendages of the feudal tenures were abolished in the reign of Charles II., and the spirit of modern improvement and of commercial policy began then to be more sensibly felt and more actively diffused. The appointment of that great and honest lawyer, Lord Holt, to the station of Chief Justice of the King's Bench gave a new tone and impulse to the vigor of the common law. The despotism of the Stuarts was abolished for ever, and the civil and political liberties of the English nation were more explicitly acknowledged and defined, at
and observations on the value and on the abuse of the authority of reports of judicial decisions. He admits the force of them when correctly stated, and applied with discernment and sobriety; and that they have the force of law when there has been a series of uniform decisions on the same point, because they then become conclusive evidence of the law. The immense collection by M. Merlin, in his Repertoire, and especially in his Questions de Droit, he would say, had the stamp of Papinian, if it were permitted to compare any lawyer to Papinian.
(a) Entretiens sur les Sciences et sur la Manière d'étudier.
the accession of the house of Orange. The old reporters {480} will include all the reports from the Year Books down to
that period; and we will, in the first place, bestow upon those of them which are the most distinguished a cursory glance and rapid review.
3. Notice of the Principal Reports at Law. — The oldest reports extant on the English law are the Year Books, which consist of eleven parts or volumes, written in law French, and extend from the beginning of the reign of Edward II. to the latter end of the reign of Henry VIII., a period of about two hundred years.
There are a few broken cases, which may be gleaned from the old abridgments, and particularly from Fitzherbert, which go back to the reign of Henry III.1 The Year Books were first printed in the reign of James. I., and were again printed by subscription in 1679; but they have never been translated, and they are not worth the labor and expense either of a new edition or a translation. The substance of the Year Books was afterwards included in the great abridgments of Statham, Fitzherbert, and Brooke, and those compilations superseded, in a considerable degree, the use of them. The Year Books were very much occupied with discussions touching the forms of writs, and the pleadings and practice in real actions, which have gone entirely out of use. In a late case in the C. B., the judges spoke with some sharpness of reproof against going back to the Year Books in search of a precedent in the case of levying a fine. (a) The great authenticity and accuracy of the Year Books arose from the manner in which they were composed. There were four reporters appointed to that duty, and they had a yearly stipend from the crown, and they used to confer together, and the reports being settled by so many persons of approved diligence and learning, deservedly carried great credit with them. (b) But so great have been the changes since the feudal ages, in the character of prop-
(a) 2 Taunt. 201.
1 Year Books of 20 and 21, 30 and 31, 32 and 33 Edward I. have now been published, with a translation under the direction of the Master of the Rolls. Earlier still is the Placitorum Abbreviatio, which goes back to the reign of Richard I. The
(b) Preface to Plowden's Reports.
case of Battle Abbey, which was heard before Henry II. in person, with many of his magnates, including the Chancellor Thomas à Becket, will be found in 2 Palgrave's Eng. Comm. xxviii.-lxiv. Vide ib. lxv., lxxiii.
erty, the business of civil life, and the practice of the courts, that the {481} mass of curious learning and technical questions contained in the Year Books have sunk into oblivion; and it will be no cause of regret if that learning be destined never to be reclaimed. The Year Books have now become nearly obsolete, and they are valuable only to the antiquary and historian, as a faithful portrait of ancient customs and manners. (a)
The Year Books ended in the reign of Henry VIII., because persons were no longer appointed to the task of reporting, with the allowance of a fixed salary. Private lawyers then undertook the business of reporting for their own use, or for the purpose of publication. Many English lawyers have regretted that the practice of appointing public reporters, with a stipulated compensation, as is now the American practice, was not continued, as it would have relieved the profession from many hasty and inaccurate reports, which have greatly increased the uncertainty of the law. The reports of Dyer relate to the reigns of Henry VIII., Edward VI., Mary, and Elizabeth. They have always been held in high estimation, for Dyer presided as Chief Justice in the C. B. for upwards of twenty years, and was distinguished for learning, ability, and firmness. His reports were afterwards enriched by marginal notes of Chief Justice Treby, and which are said, by Mr. Justice Buller, (b) to be good law. The work was compiled in law French, and published in an English translation, in 1793, with the notes.
Plowden's Commentaries embraced the same period as the reports of Dyer. They bear as high a reputation for accuracy as any ancient book of reports, though Lord Coke said he had discovered four cases in Plowden which were erroneous. (c) Plowden gives the pleadings in those cases in {482} which judgment was entered, and the arguments of counsel, and the decisions on the bench, very much at large. They were first published in 1578, and taken originally, as he says, for his private use. But he took great pains in rendering his work accurate, and he reported nothing but what had been debated and decided upon demurrer or special verdict; and his reports were likewise
(a) In 1 Barn. & Cress. 410, the Court of King's Bench decided a case chiefly upon the authority of a citation from the Year Book of 42 Edw. III., but such a reference is rare.
(b) 2 T. R. 84.
(c) Bacon's Works, vi. 122.
submitted to the inspection of the sergeants and judges. The work is, therefore, distinguished for its authenticity and accuracy; and though not of so dramatic a character as much of the Year Books, it is exceedingly interesting and instructive, by the evidence it affords of the extensive learning, sound doctrine, and logical skill of the ancient English bar.
Lord Coke's Reports, in thirteen parts or volumes, are confined to the reigns of Elizabeth and James, and deservedly stand at the head of the ancient reports, as an immense repository of common-law learning. The first eleven books of his reports contain about five hundred cases, and were published in his lifetime, and he took care to report and publish only what he calls leading cases, and conducive to the public quiet. Lord Bacon said, that had it not been for Sir Edward Coke's Reports, the law in that age would have been almost like a ship without ballast; and that though "they had extrajudicial resolutions, they did contain infinite good decisions." Much of the various and desultory learning in these reports is law to this day; and the most valuable of the cases reported have been selected, and recommended to the attention of the American student, by Professor Hoffman, of the University of Maryland, in his "Course of Legal Study." When these reports were published, between 1600 and 1615, there were no other prior reports but the Year Books, Dyer, and Plowden. Lord Coke said, that he endeavored, in his reports, to avoid obscurity, ambiguity, and prolixity. It is singular that he should have so egregiously failed in his purpose. The want of methodical arrangement and lucid order is so manifest in his reports, {483} and he abounds so greatly in extrajudicial dicta and collateral discussions, that he is distinguished above most other reporters for the very defects he intended to avoid. It is often very difficult to separate the arguments of counsel from the reasons and decisions of the court, and to ascertain precisely the point adjudged. This, probably, gave occasion to Ireland and Manley's Abridgment of Lord Coke's Reports, in which they undertake to detach from the work all the collateral discussion and learning, and to give only the "very substance and marrow" of the reports. A work of this kind may be convenient in the hurry of research, but I believe no accurate lawyer would ever be contented to repose himself upon such a barren account of a decision, without looking into the reason and authorities on
which it was founded. (a) With all their defects, Lord Coke's Reports are a standard work of that age, and they alone are sufficient to have discharged him from that great obligation of duty with which he said he was bound to his profession. When Coke's Reports were first published, they gave much offence to King James, as containing many doctrines which were deemed too free and injurious to the prerogative of the crown; and the king commanded Lord Coke to strike out the offensive parts, and he also referred the work to his judges to be corrected. (b) But Lord Coke was too independent in spirit, and he had too high a regard to truth and law, to gratify the king on this subject; and he was, for this and other causes, removed from the office of Chief Justice of the K. B.
Hobart's reports of cases in the time of James I. were printed in 1646, and, in a subsequent age, they were revised {484} and corrected by Lord Chancellor Nottingham. Like the reports of Lord Coke, they are defective in method and precision, and are replete with copious legal discussions. Hobart was Chief Justice of the C. B., and a great lawyer. Judge Jenkins, the contemporary of Coke and Hobart, has given us, in the preface to his reports, an exalted eulogy on those distinguished men, and the biographical sketch of their characters is peculiarly animated and lively. Jenkins compiled his reports or centuries (as he quaintly terms them) during the tumult of the civil wars under Charles I. and the commonwealth, and they resemble more a digest of decisions after the manner of Fitzherbert and Brooke than regular reports of adjudged cases. Prom his intemperate language and hard fate, it is evident he was a zealous royalist, and had provoked the resentment of his enemies. He composed his work, as he says, when he was "broken with old age and confinement in prison, where his fellow-subjects, grown wild with rage, had detained him for fifteen years, and that he was surrounded with an odious multitude of barbarians." He renders a just tribute of veneration to the memory of Lord Coke and Lord Hobart, as two men who had furnished surpass-
(a) We have Lord Coke's authority on the very point. "The advised and orderly reading over of the books at large, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgments as tables, and to trust only to the books at large." Dedication of Coke's Reports to the Reader, 11.
(b) Lord Bacon's Works, vi. 121, 128, 132, 173.
ing light to the professors of the law. They were judges of great authority and dignity, who to the most accurate eloquence joined a superlative knowledge of the laws, and consummate integrity, and whose names, he said, would flourish as long as the laws and the kingdom should endure. Lord Hobart, as he continues to observe, was adorned with the brightest endowments, and a piercing understanding, and he had always equity before his eyes. Lord Coke was a judge whom power could not break nor favor bend. He received the smiles and frowns of the court by turns, and possessed an immense fortune, which he had honestly acquired. The only thing objected to him as a fault was, that he was thought to go to too great lengths with the republican party;
but he admits that he died in the highest estimation. {485} Croke's reports of decisions in the courts of law in
the reigns of Elizabeth, James, and Charles are a work of credit and celebrity among the old reporters. They commenced about the time that Dyer ended, and were first published under the protectorate of Cromwell. From the character of the judge, his gravity, learning, diligence, and advantages, and from the precision and brevity of his cases, these reports have sustained their character in every succeeding age, and are, to this day, familiarly referred to as an authentic depository of the rules of the common law.
The reports of Yelverton are a small collection of select cases, in the latter part of the reign of Elizabeth, and the first ten years of the reign of James. He was a judge of the C. B., and one of the most eminent lawyers of that age, which was truly the Augustan age of the old common-law learning. These reports have been lately recommended to the notice of the American lawyer by a new edition, published in this country, and enriched with copious, valuable, and accurate notes by Mr. Metcalf.
In the reign of Charles II., the most distinguished of the reports are those of Chief Justice Saunders. They are confined to decisions in the K. B. for the space of six years, between the 18th and 24th years of the reign of Charles II., and contain the pleadings and entries in cases decided, as well as the arguments of counsel, and the judgments of the court. They are recommended for the accuracy of the entries, and the concise, clear, and pointed method of decision; and are particularly valuable to the practising lawyer, as a book of precedents as well as of deci-
sions. They have always been esteemed the most accurate and valuable reports of that age, and this is the character which has been repeatedly given of them by the judges in modern times. (a) A new edition of these reports was published in 1799, by Sergeant Williams, with very copious notes, which, in many {486} instances, are distinct and elaborate essays on the subjects of which they treat. Lord Eldon has said, in reference to this edition, that to any one in a judicial situation it would be sufficiently flattering to have said of him, that he was as good a common lawyer as Sergeant Williams, and that no man ever lived to whom the character of a great common lawyer more properly applied. 1 have no doubt of the merit of the edition, and of the great learning of the editor. The authorities, new and old, applicable to the subject, are industriously collected and methodically arranged. But with all the praise justly due to the edition, it is liable to the great objection of making one of the old reporters the vehicle of voluminous dissertations. They introduce perplexity and confusion by their number and length. If such treatises were published by themselves, the student would know better where to find them; but when appended to a plain reporter, they seem to be out of place. Notes would appear to be more appropriate, if they were confined simply and dryly to the illustration of the case in the text, and to show, by a reference to other decisions, how far it might still be regarded as an authority, and when and where it had been confirmed, or questioned, or extended, or restricted, or overruled. The convenience and economy of the profession would certainly be well consulted by this course. This edition of Saunders so far surpasses in extent and variety of learning the original work, as to become a new work of itself, which might properly be denominated Williams's notes; and the venerable simplicity of the reporter is obscured and lost, in the commentaries of the annotator. (a)
The reports of Chief Justice Vaughan contain some very interesting cases. He was a grave and excellent judge, and his reports consist chiefly of his own arguments and opinions deliv-
(a) Burr. 1730; 2 Bos. & Pull. 23.
(a) The distinguished Reports of Saunders, edited by Sergeant Williams, appeared in a 5th edition, by Mr. Justice Paterson, of the Q. B., and afterwards, in 1847, in a 6th edition, by Edward Vaughan Williams, in 3 vols, octavo. [In 1871, the notes were published separately, continued to date by Mr. Justice E. V. Williams.]
ered while he was Chief Justice, and they are distinguished for great variety of learning. The Reports of Sir Thomas Jones, who was also Chief Justice in the reign of Charles II.; of Sir Creswell Levinz, who was a judge of the {487} C. B.; of Sir Gefrey Palmer, who was Attorney-General under Charles II.; of Lord Chief Justice Pollexfen, whose reports consist of cases argued by him while he was at the bar; and of Sir William Jones, who was for twenty-two years a judge, are all of them works of authority, though a considerable part of the discussions and decisions which they record ceases at this day to excite much attention, or to be very applicable to the new and varied course of human affairs. And, indeed, it may be here observed, that a very large proportion of the matter contained in the old reporters, prior to the English revolution, has become superseded, and is now cast into the shade by the improvement of modern times; by the disuse of real actions, and of the subtleties of special pleadings; by the cultivation of maritime jurisprudence; by the growing value and variety of personal contracts; by the spirit of commerce, and the enlargement of equity jurisdiction; by the introduction of more liberal and enlightened views of justice and public policy; and, in short, by the study and influence of the civil law.
In perusing the old reports, we cannot but be struck with the long, laborious, and subtle arguments, and the great delay which accompanied the investigation of points of law. Thus, for instance, the case of Stowel v. Zouch, in Plowden, was argued twice in the C. B.; and then twice in the Exchequer Chamber, before all the judges in England. Calvin's Case, in Coke, was argued first at the bar of the K. B. by counsel, then in the Exchequer Chamber, first by counsel, and then by all the judges. It was afterwards argued by counsel at two different times, and then by all the judges at the next term, upon four different days; and at another term thereafter by all the judges on four different days. So again in Manby and Richards v. Scott, in Levinz, the case was argued at the bar three several times, by distinct counsel each time, and afterwards by all the judges at the bench. It was quite common in former times to have a case spoken to at two, and three, and four several times, and each time at a different term, before judgment was rendered. In {488} Lord Chief Justice Willes's Reports, in the reign of George II., we
find a case which was argued five times, and at five distinct terms, and the judgment was not rendered until the space of five years had elapsed from the first argument. It was not until the time of Lord Mansfield that such repeated arguments were disused, and great despatch and unexampled facility and vigor given to the administration of justice. There were some advantages attending repeated discussions, which served as a compensation for the delay and expense attending them. They tended to dissipate shadows and doubts, and to unite the opinions on the bench, and prevent that constant division among the judges which has much weakened the authority of some of our American courts.
From the era of the English revolution, the reports increase in value and importance; and they deal more in points of law applicable to the great change in property, and the commerce and business of the present times. I shall not undertake to speak critically of the particular merits of the modern reports, for this would lead me into too extensive details. Those of Lord Raymond and Sergeant Salkeld embrace the reigns of William and Mary, and Queen Anne; and during that period Lord Chief Justice Holt gave lustre to the jurisprudence of his country. The reports of Sir John Strange, of Lord Chief Baron Comyns, of Lord Chief Justice Willes, and a part of the reports of Sergeant Wilson, occupy the reigns of George I. and II.; and they are all respectable, and the reports of Willes and Wilson, in particular, very accurate repositories of the judicial decisions of those reigns. The reports of Lord Raymond and of Sergeant Wilson are also peculiarly valuable to the pleader, for the many useful entries and forms of pleadings which accompany the cases. From that period the English reports are to be read and studied with profound attention. The reports of Burrow, Cowper, and Douglass contain the substance of Lord Mansfield's judicial decisions, and they are among the most interesting reports in the English {489} law. All the courts of law at Westminster have been filled with very eminent men since the time of the accession of George III.; and we need only refer to the Term Reports and to East and his successors, as reporters to the King's Bench, and to Wilson, Henry Blackstone, Bosanquet & Puller, Taunton, and their successors in the C. B., for views and sketches of the English law in its most correct and cultivated state.
A still deeper interest must be felt by the American lawyer in the perusal of the judicial decisions of his own country. Our American reports contain an exposition of the common law, as received and modified in reference to the genius of our institutions. By that law we are governed and protected, and it cannot but awaken a correspondent attachment. But I need not undertake the invidious task of selection and discrimination among the numerous volumes of the reports of American decisions. Their relative character must be familiar to the profession, and it will be sufficient to advise the student to examine thoroughly, and obtain the mastery of the principles of law as expounded and declared by our more important tribunals, whether they be of federal or of state jurisdiction.
4. Notice of the Principal Reports in Equity. — We have hitherto confined our attention to the reports of cases in the courts of common law. But the system of equity is equally to be found embodied in the reports of the adjudged cases; and the rules and usages of the Court of Chancery are as fixed as those which govern other tribunals. They have been regarded as a kind of secondary common law, framed or promulgated by the Court of Chancery within the two last centuries. That court is as much bound as a court of law, by a series of decisions, applicable to the case, and establishing a rule. It has no discretionary power over principles and established precedents; and chancery has grown to be a jurisdiction of so much strict technical rule, that it is said by a distinguished writer on equity doctrines, that there are now many settled rules of equity which require to be moderated by the rules of good conscience, as much as the most rigorous rules of law did, before the chancellors interfered on equitable {490} grounds. (a) A court of equity becomes, in the lapse of time, by gradual and almost imperceptible degrees, a court of strict technical jurisprudence, like a court of law. The binding nature of precedents in a court of equity was felt and acknowledged by Lord Keeper Bridgman, in the reign of Charles II.; (b) and in the case of The Earl of Mountague v. Lord Bath, (c) soon after the revolution, Lord Chief Justice Treby, who sat for the Lord Chancellor, declared that the Court of Chancery was limited by the precedents and practice of former
(a) Sugden's Letters to a Man of Property, 4.
(b) 1 Mod. 307. (c) 3 Ch. Cas. 95.
times, and that it was dangerous to extend its authority further. At this day, justice is administered in a court of equity upon as fixed and certain principles as in a court of law; and Lord Eldon has secured to himself a title to the reverence of his countrymen, by resisting the temptation, so often pressed upon him, to make principles and precedents bend to the hardship of a particular case. (d) In this country it is at least as important as in any other, that the administration of justice, both legal and equitable, should be stable and uniform; and especially if there be any weight in the opinion of an ancient English lawyer, that "variety of judgments and novelty of opinions were the two plagues of a commonwealth." (e)
We have no reports of chancery decisions until subsequent to the time of Lord Bacon.1 Anciently the Court of Chancery administered justice according to what appeared to be the dictate of conscience as applied to the case, without any regard to law or rule; and great inconvenience and mischief must have been produced in the infancy of the court, by reason of the uncertainty and inconsistency of its decisions, flowing from the want of settled principles. The jurisdiction of the court was greatly enlarged in the time of Cardinal Wolsey, who was chancellor under Henry VIII.; {491} and he maintained his equitable jurisdiction with a high hand, and exercised his authority over everything which could be a subject of judicial inquiry, and decided with very little regard to the common law. This conduct in his judicial capacity was one of the grounds of accusation against him when he was impeached. Under his successor, Sir Thomas More, who is said to have been the first
(d) Lord Chancellor Hart has observed, however (and he had been familiar with the English Chancery practice), that Lord Eldon was not the slave of authority, for his doctrine was, that everything in equity turns on the circumstances, and what the court had to see was, whether the circumstances took the case out of the usual rule. In equity there is no rule so inflexible as not to bend to the special circumstances of a particular case. Moore v. McKay, 2 Molloy, 134. See also Montesquieu v. Sandys, 18 Vesey, 302.
(e) Pref. to Jenkins's Centuries.
1 The British government has published with the calendars of the proceedings in chancery during the reign of Queen Elizabeth examples of such proceedings going back as far as Richard II. These
calendars were much referred to in Vidal v. Girard, 2 How. 127, 196, to prove the jurisdiction of chancery over charities before the Statute 43 Eliz.
chancellor that ever had the requisite legal education, (a) business rose again with rapidity, and to such an extent as to require the assistance of a Master of the Rolls. He allowed injunctions so freely as to displease the common-law judges, though he acted always with great ability and integrity. (b) To show how wonderfully business in chancery had increased by the time of Lord Bacon, we need only recur to the fact which he gives us himself, (c) that he made two thousand orders and decrees in a year; and yet we have not a single decision of his reported.
Those decisions, if well and faithfully reported, would doubtless have presented to the world a clear illustration and masterly display of many principles of equity since greatly considered and discussed; for even upon dry technical rules and points of law he shed the illuminations of his mighty mind.
In West's Symboleography, a work published at the close of Elizabeth's reign, we have divers curious and authentic precedents of the process, and bills, and answers in chancery, prior to the time of Bacon. We have, also, in the same work, a brief digest of the powers and jurisdiction of the court, from which it would appear, that equity was regarded in that day as a matter of arbitrary conscience, unincumbered by any rules or principles of law. No cases are cited to show what the authority was, but such as were gleaned from the Year Books, and the treatises of the Doctor {492} and Student, and of the Diversity of Courts. (a) It was not until after the restoration that any reports of adjudged cases in chancery were published. The volumes entitled "Reports of Cases taken and adjudged in the Court of Chancery, in the reigns of Charles I., Charles II., James II., William III., and Queen Anne," commence with the reign of Charles I., and contain the earliest adjudged cases in
(a) But Lord Campbell, in his Lives of the Lord Chancellors, mentions some distinguished chancellors taken from the common-law courts in much earlier times. [And the ecclesiastical chancellors were educated in the Roman law. 1 Spence, Eq. 347.]
(b) Reeves's History of the English Law, iv. 368-377.
(c) Bacon's Works, iv. 530.
(a) The Diversity of Courts and their Jurisdictions is a very brief treatise, compiled in law French, under Henry VIII., and translated into English by William Hughes, under Charles I. It stated that in chancery "a man shall have remedy for that for which he can have no remedy at the common law; and it is called by the common people the court of conscience." It is punted at the end of the Mirror of Justices.
equity. But that work, and another contemporary work of the same character, entitled "Cases argued and adjudged in the High Court of Chancery," are both of them, in their general character, loose, meagre, and inaccurate reports, of not much weight or authority. The reports of some cases decided by Lord Chancellor Cowper, in the third and last volume of the Reports in Chancery, and the great case of the Duke of Norfolk, and the case of Bath and Mountague, at the conclusion of the Cases in Chancery, are distinguished exceptions to this complaint, and those great cases are fully and very interestingly reported. In the latter part of the reign of Charles II., Lord Chancellor Nottingham raised the character of the court to high reputation, and established both its jurisprudence and its jurisdiction upon wide and rational foundations. We have but few reports of his decisions that are worthy of his fame. They are dispersed through several works of inferior authority. It is from his time, however, that equity became a regular and cultivated science, and the judicial decisions in chancery are to be carefully
studied.
Vernon's Reports are the best of the old reports in chancery. They were published from his manuscripts, after his death, by order of Chancellor King, and were found to be quite imperfect and inaccurate. In 1806, Mr. Raithby favored the profession with a new and excellent edition of Vernon, enriched by learned notes and accurate extracts from the register's books, so that the volumes assumed a new dress, and more unquestionable authenticity. Those reports include part of the judicial administration of Lord Nottingham, and the whole of the time of Lord Somers; {493} but they give us nothing equal to the reputation of those great men. They bring the series of equity decisions down to the conclusion of Lord Chancellor Cowper's
judicial life.
Precedents in Chancery is a collection of cases between 1689 and 1722; and the author of those reports, and of the first volume of Equity Cases Abridged, is generally supposed to be the same person. They are works which contain very brief cases, in comparison with the voluminous details of modern reports; but they are of respectable authority. (a) Peere Williams's Reports extend from the beginning of the last century to the year 1735, (a) 1 Vesey, 547; 3 Vesey, 285; 5 Vesey, 664.
and they embrace the period of the decisions of a succession of eminent men, who presided in chancery in the former part of that century. The notes of Mr. Cox to the fourth edition of these reports gave to that edition the character of being the best edited book on the law. Even before his learning and industry had given new character and value to the reports of Peere Williams, they were regarded as one of the most perspicuous, useful, and interesting repositories of equity law to be found in the language.
Moseley's reports of cases during the time of Lord King have received a various and contradictory character and treatment. Lord Mansfield said it was a book not to be quoted; but Lord Eldon, who is presumed to have been a better judge of the merits . of the work, says that Moseley is a book of considerable accuracy. (b) It is fortunate that we have even so imperfect a view of the decisions of Lord King, who was an eminent scholar, and to whom Mr. Locke bequeathed his papers and library.
Lord Talbot presided in chancery but a very few years. He was a pure and exalted character, who died in the vigor of his age, and his loss was lamented as a great national calamity. The cases during his time, under the title of "Cases tempore Talbot," are well reported, and have a reputation for accuracy.
{494} Lord Hardwicke, the successor of Lord Talbot, held the great seal for upwards of twenty years, and the present wise and rational system of English equity jurisprudence owes more to him than perhaps to any of his predecessors. His decisions are reported in the elder Vesey and Atkyns, and partly in Ambler and Dickens; and though none of them are eminent reporters, either for accuracy or precision in the statements of the cases, or in giving the judgment of the court, (a) yet the value of his opinions, and the great extent of his learning, and the solidity of his judgment, have been sufficiently perceived and understood. There is no judge in the judicial annals of England whose judicial character has received greater and more constant homage. His knowledge of the law, said a very competent judge, was most extraordinary, and he was a consummate master of the profession. (b) His decisions, at this day, and in our own courts,
(b) 3 Anst. 861; 5 Burr. 2629; 1 Meriv. 92.
(a) Buller, J., in 6 East, 28, n.; Sir J. Mansfield, in 5 Taunt. 64; 4 Vesey, 138, n. Preface to Eden's Rep.; 1 Sch. & Lef. 240.
(b) Lord Kenyon, 7 T. R. 416.
do undoubtedly carry with them a more commanding weight of authority than those of any other judge; and the best editions of the elder Vesey and Atkyns will continue to fix the attention and study of succeeding ages.
Eden's Reports of the decisions of Lord Northington, the successor to Lord Hardwicke, are very authentic and highly esteemed. They surpass in accuracy the reports either of Ambler or Dickens within the same period; and the authority of Lord Northington is very great, and it arose from the uncommon vigor and clearness of his understanding. The next book of reports of deserved celebrity is Brown, commencing with Lord Thurlow's appointment to the office of chancellor; and the high character of the court at that period gave to those reports a very extensive authority and circulation, for which they were indebted more to the reputation of the chancellor than to any merit in the execution of the work. Cox's Cases in Chancery give us the {495} decisions of Lord Kenyon, while he was Master of the Rolls under Thurlow, as well as the decisions of the Lord Chancellor during the same period. They were intended as a supplement to the reports of Brown and the younger Vesey, so far as those reports covered the period embraced by the cases, and they are neat, brief, and perspicuous reports, of unquestionable accuracy. A new and greatly improved edition has lately been published in New York, under the superintendence of one of the masters in chancery.
The reports of the younger Vesey extend over a large space of time, and contain the researches of Sir Richard Pepper Arden, as Master of the Rolls, and the whole of the decisions of Lord Loughborough, and carry us far into the time of Lord Eldon. These reports are distinguished for their copiousness and fidelity. The same character is due to the reports of his successors; and though great complaints have been made at the delay of causes, arising from the cautious and doubting mind of the present (a) venerable Lord Chancellor of England, it seems to be universally conceded, that he bestows extraordinary diligence in the investigation of immense details of business, and arrives in the end at a correct conclusion, and displays a most comprehensive and familiar acquaintance with equity principles. It must, nevertheless, be admitted that the reports of Lord Eldon's administration
(a) 1826.
in equity, amounting to perhaps thirty volumes, and replete with attenuated discussion, and loose suggestions of doubts and difficulties, are enough to task very severely the patience of the profession.
There are recent reports of decisions in other departments of equity which are deserving of great attention. The character of those branches of the equity jurisdiction is eminently sustained; and the reported decisions of Lord Redesdale and Lord Manners, in the Irish Court of Chancery, are also to be placed on a level, in point of authority, with the best productions of the English bench. (b)
Upon our American equity reports I have only to observe,
that, being decisions in cases arising under our domestic
{496} laws and systems, they cannot but excite a stronger
interest in the mind of the student; and from their more
entire application to our circumstances, they will carry with
them the greater authority.1
(b) The Lives of the Lord Chancellors of England, from the earliest times till the reign of George IV., in 5 vols. 8vo, London, 1846, by Lord Campbell, is the most instructive and attractive work on legal biography that is extant, and equally distinguished for its truth, its candor, and its freedom.
1 [The reports of judicial decisions, to which the attention of the American lawyer is directed, have become too numerous even to be designated in a limited note. The English reports still retain their high rank in the lawyer's library. The alterations of our forms of pleadings, and in the rules of procedure, and the differences of our political systems, indeed, render many of the English decisions inapplicable to our circumstances; but the mass of legal questions will always remain alike in both countries. The essential principles of civil liberty belong to both; the mode of legislation in each is the same; and the system of evidence, the rights of persons, and the great body of commercial law, are common to England and America. The reports of the courts of England seemed for a while to languish, after the retirement of Lord Ellenborough, but they never exhibited
the science of the law in so high and cultivated a state as at the present time. If it be not presuming in an American annotator to pretend to discriminate among the contemporary decisions, he may point out to the student, among the common-law reports, the decisions of the Court of Exchequer, since Baron Parke and his very learned associates became the judges, as worthy of the brightest period of English jurisprudence.
Since the last edition of the Commentaries appeared, the Court of Chancery of New York has ceased to exist, and with it has closed a series of equity reports which reflected lustre on the state, and the influence of which has pervaded the jurisprudence of the nation. The reports containing the decisions of the two most distinguished chancellors of New York, Johnson's Reports, Paige's Reports, and Harbour's Chancery Reports,
5. Interesting Character of Reports. — I have now finished a succinct detail of the principal reporters; and when the student has been thoroughly initiated in the elements of legal science, I would strongly recommend them to his notice. The old cases, prior to the year 1688, need only be occasionally consulted, and the leading decisions in them examined. Some of them, however, are to be deeply explored and studied, and particularly those cases and decisions which have spread their influence far and wide, and established principles which lie at the foundations of English jurisprudence. Such cases have stood the scrutiny of contemporary judges, and been illustrated by succeeding artists, and are destined to guide and control the most distant posterity. The reports of cases since the middle of the last century ought, in most instances, to be read in course, and they will conduct the student over an immense field of forensic discussion. They contain that great body of the commercial law, and of the law of contracts, and of trusts, which governs at this day. They are worthy of being studied even by scholars of taste and general literature, as being authentic memorials of the business and manners of the age in which they were composed. Law reports are dramatic in their plan and structure. They abound in pathetic incident, and displays of deep feeling. They are faithful records of those "little competitions, factions, and debates of mankind"
comprise the whole system of equity law, and will always be the resort and study of the American lawyer.
Of the first of those chancellors it is unnecessary to speak to the reader of his volumes. Most of his decisions have been transferred to his Commentaries. "Lector, si monumentum requiris circumspice!"
But it may be permitted to the editor to render his tribute of homage to Chancellor Walworth. It has been his privilege to practise under the Chancellor during his whole term of office, and to observe those high judicial qualities which have rarely been equalled. If in his demeanor on the bench the Chancellor was sometimes open to criticism, it was that only which has been applied to kindred genius, that "he was prevented, by his
inconceivable rapidity in apprehending the opinions of others, from judging accurately of their reasonableness." This criticism, however, never approached his matured decisions, embracing the whole circle of equity. Never, perhaps, were so many decisions made, where so few were inaccurate as to facts or erroneous in law.
If it was destined that the Court of Chancery should fall under a reform which apparently designs to obliterate the history as well as the legal systems of the past, it is a consolation to reflect that it fell without imputation on its purity or usefulness, and that no court was ever under the guidance of a judge purer in character or more gifted in talent than the last chancellor of New York. — W. K.]
that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, and the machinations of fraud. They give us the skilful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true portraits of the talents and learning of the sages of the law. {497} We should have known but very little of the great mind and varied accomplishments of Lord Mansfield, if we had not been possessed of the faithful reports of his decisions. It is there that his title to the character of "founder of the commercial law of England" is verified. A like value may be attributed to the reports of the decisions of Holt, Hardwicke, Willes, Wilmot, DeGrey, Camden, Thurlow, Buller, Kenyon, Sir William Scott, Grant, and many other illustrious names, which will be immortal as the English law. Nor is it to be overlooked as a matter of minor importance, that the judicial tribunals have been almost uniformly distinguished for their immaculate purity. Every person well acquainted with the contents of the English reports must have been struck with the unbending integrity and lofty morals with which the courts were inspired. I do not know where we could resort, among all the volumes of human composition, to find more constant, more tranquil, and more sublime manifestations of the intrepidity of conscious rectitude. If we were to go back to the iron times of the Tudors, and follow judicial history down from the first page in Dyer to the last page of the last reporter, we should find the higher courts of civil judicature, generally, and with rare exceptions, presenting the image of the sanctity of a temple, where truth and justice seem to be enthroned, and to be personified in their decrees.