Aye, "dark indeed, and ill-arranged" beyond the power of order, "but containing," as our author justly observes, "store of commodities," of all sorts, and sizes, and shapes, and complexions, cases black, and cases white, and cases neither black nor white, cases old, and cases new,-cases in accordance with common sense, and cases superior to common sense,-cases in banc, nisi prius cases, and cases manufactured by reporters, (m) -printed cases, and manuscript cases,-obiter dicta, and extra judicial decisions, and points reported arguendo," which those acquainted with its recesses seldom fail to be able to produce to such has have occasion for them." All of which, though we most powerfully and potently believe, yet, as Hamlet says, we hold it not honesty to have it thus set down by the "Author of Waverley."

As to what immediately follows, we can afford the reader no sort of clue or explanation.

"The practiques, or adjudged cases, in fact, form a breakwater, as it were, to protect the more formal bulwark of the statute law; and, although they cannot be regularly jointed or dove-tailed together, each independent decision fills its space on the mound, and offers a degree of resistance to innovation, and protection to the law, in proportion to its own weight and importance." pp. 59, 60.

Whether the adjudged cases do “in fact form a breakwater, as it were," is more than we can pretend to fathom. Lord Ellenborough, C.J., as we have above seen, terms them quicksands. However this may be, we mest fervently recommend it to the Archbishops and Bishops, to make one slight addition to a verse in the Litany: From lightning and tempest, from plague, pestilence, and famine, from battle, and murder, and from sudden death, from metaphors and from similes, Good Lord deliver us." The next argument of our author is addressed to the passions, ad captandum, and is in all respects a master-piece.

"But we regard the multitude of precedents in English law as eminently favourable, not only to the certainty of the law, but to the liberty of the subject; and especially as a check upon any judge, who might be disposed to innovate either upon the rights or liberties of the lieges. If a general theoretical maxim of law be presented to an unconscientious or partial judge, he may feel himself at liberty, by exerting his ingenuity, to warp the right

(m) "Lord Mansfield absolutely forbade the citing that book (Baruardiston's Reports in Chancery); for it would be only misleading students to put them upon reading it. He said, it was marvellous, however, to those who knew the Serjeant, and his manner of taking notes, that he should so often stumble upon what was right:

but yet that there was not one case in his book which was so throughout." 2. Burrow's Rep. 1142. note. --Yet we have heard, that a late equity judge was rather disposed to countenance. the learned Serjeant's labours; and the time may come, when their authority will be undisputed.

cause the wrong way. But if he is bound down by the decisions of his wise and learned predecessors, that judge would be venturous indeed, who should attempt to tread a different and more devious path than that which is marked by the venerable traces of their footsteps; especially as he well knows that the professional persons around him, who might be blinded by the glare of his ingenuity in merely theoretical argument, are perfectly capable of observing and condemning every departure from precedent. (The intelligent reader will easily be aware, that, we mean not to say that every decision of their predecessors is necessarily binding on the judges of the day. Laws themselves become obsolete, and so do the decisions which have maintained and enforced them." Author's note.) "In such a case he becomes sensible, that, fettered as he is by previous decisions, the law is in his hands, to be administered indeed, but not to be altered or tampered with; and that if the evidence be read in the court, there are and must be many present, who know as well as himself, what must, according to precedent, be the verdict, or the decision. These are considerations which never can restrain or fetter a judge, who is only called upon to give his own explanation of the general principle briefly expressed in a short code, and susceptible, therefore, of a variety of interpretations, from which he may at pleasure select that which may be most favourable to his unconscientious or partial purposes.” pp. 60, 61, 62.

The first thing which must strike every one, upon perusing the above passage, is the author's deviation from established practice, in his comparative estimate of present and past judicial character. He seems to think it within the range of possibility, that present judges may be unconscientious and partial, and may require some check; but takes it for granted that their predecessors were all learned and wise. Now we, on the other hand, make it a point of conscience to believe all present judges to be eminently learned and wise, of unerring discretion and incorruptible integrity, and hold any insinuation to the contrary to be downright heresy; but we happen to know, that very many of their predecessors, in the "venerable traces of whose footsteps" they are to tread, were foolish, and self-willed, and unconscientious, and partial, and basely servile.

To touch, however, upon the important point :-the degree of restraint, namely, imposed upon the judicial functionary by former decisions, and the consequent security afforded to the liberty of the subject. It appears, that "that judge would be venturous indeed, who should attempt to tread a different and more devious path, than that which is marked by the venerable traces of the footsteps of his predecessors." But then the "intelligent reader" is to understand, that all former decisions are not necessarily binding, because "laws themselves become obsolete, and so do the decisions which have maintained and enforced them." "Yes," an intelligent reader in Crim Tartary will say, "of course your legislature, always anxiously watchful over the integrity and due administration of the laws, declares when a law is to be considered obsolete, and a decision nugatory." Not so. The judge himself determines the question of their validity. "Fettered as he is by

previous decisions," he has nothing to do but to pronounce those previous decisions obsolete; he at once bursts his shackles, and recovers his wonted judicial freedom. "We don't now sit here,' exclaims Lord Mansfield, "to take our rules of evidence from Siderfin and Keble;"(n) and away go Siderfin and Keble at one fell swoop.

Far be it from us to affirm, that the judges have invariably disregarded the decisions of their predecessors. Many and splendid are the instances on record of their blind devotion to the idol Authority; but the intelligent reader may be disposed to doubt whether adherence to precedent has been more favourable to the "rights and liberties of the lieges," than arbitrary and capricious deviation. In the famous Habeas Corpus case in 1627, the decision of the Court of King's Bench,-that no person committed by the King or Council could be enlarged on bail,—was professedly founded upon precedents, in direct opposition to Magna Charta and six other statutes. (0) "As to the Acts of Parliament," says Selden, (p) "the judges gave no answer, but only commended them;" and in another place he remarks;-" all precedents were read, Acts of Parliament indeed were passed over. It is amusing to find the Chief Justice (Hyde) delivering judgment almost in the words of the "Author of Waverley:""What can we do," says he, "but walk in the steps of our forefathers?" (g) As another edifying instance of the power of precedent, we may mention the case well known by the name of the Bewdley case, (r) in which the express directions of a most explicit statute (4 and 5 Anne. c. 16,) were set at nought, upon the grounds, as Chief Justice Parker stated them, that "the constant practice, ever since the making of the act" (that is, for seven years)" and all the precedents, were otherwise." Who, after this, will dare to dispute the doctrine laid down by Lord Mansfield, when Solicitor General, that "common law" (the) offspring of common error, as Lord Holt describes it,)" is superior to an Act of Parliament ?" (s)

When the positive enactments of the legislature were thus unceremoniously treated, in deference to precedents, it could

(n) Lowe v. Jolliffe. 1 W. Blackstone, 366.

(0) See State Trials. 3 Charles 1. 1 Rushworth. 461.

(p) Selden's works, vol. 3, part 2, pp. 1955-6.

(9) State Trials.

(r) i Peere Wms. 207.

(s) 1 Atkyns. 33. The reason as

signed for the superiority may possi bly afford as much merriment to the reader as it has to Mr. Bentham,because "It works itself pure from the fountains of justice." See Mr. Bentham's comment upon this speech, and upon jurisprudential law generally, in his Rationale of Evidence, vol. iv. book 8, c. 24.

scarcely be expected that common sense and mere justice would meet with greater forbearance. "This rule being now established," says Lord Mansfield, speaking of a preposterous rule as to the constructive revocation of a will, (t) "must be adhered to, although it is not founded upon truly rational grounds and principles, nor upon the intent, but upon legal niceties and subtilty.' Again, the same Chief Justice:-"The absurdity of Lord Lincoln's case is shocking. However, it is now law; (u) "I admit," says Mr. Justice Yates, "that the original reason of the rule in Shelley's case has long since ceased; but I deny that for that reason it must be discountenanced, it having long been the law of the land; and this, though the reason has ceased, to preserve that noble uniformity for which the law of England has been celebrated, and which is the true criterion of freedom." (v) This, it may be observed, is one of the usual modes of justifying an adherence to precedents, when the principles upon which they are founded are utterly indefensible, or, to use Lord Mansfield's expression, shocking. The noble uniformity of the law must be preserved, though it should be an uniformity of absurdity, a monstrous symmetry. Another favourite argument on such occasions, is "the danger of removing the ancient land-marks." "Stare decisis is a safe and prudent maxim." (w) "I do not enter into the reasons upon which all the cases have been determined, because the best rule is stare decisis." (x) "Though there might be great reason," says Lord Mansfield, (y)" for the doubt, (whether the leading case on a particular point of settlement law was well founded,) if the matter were again open, yet stare decisis is always proper." Sometimes, however, the judges, instead of pointing to the air-drawn "fetters," imagined by the "Author of Waverley," and piteously demanding, like Chief Justice Hyde-" What can we do?"-have vindicated established absurdities with becoming courage. In the celebrated case of the Dean of St. Asaph, (x) Lord Mansfield most elaborately justified the practice of confining juries, in trials for libel, to the simple fact of publication, and tauntingly declared, "that such a judicial practice, in the precise point, from the revolution downwards, was not to be shaken by general theoretical arguments or popular declamation." He was pleased also to add, that "jealousy of leaving the law to the Court, as in other cases, was puerile cant and declamation." The legislature, as our readers are aware,

(t) Roe 1960.

v. Griffits. 4 Burrow.

(u) Doe v. Pott. 2 Dougl. 722. (v) Perrin v. Blake. Collectanea Juridica. 1. 312.

(w) Mr. Justice Ashhurst, Goodtitle v. Otway. 7. T. R. 420.

(x), Lord Kenyon. Ibid. p. 418. (3) Underbarrow v. Crossthwaite. Bur. Settl. Cas. 545.

(z) 3 T. R. 430-1.

thought otherwise; and by the 32 Geo. 3. c. 60, entitled "An Act to remove Doubts respecting the Functions of Juries," overturned the whole phalanx of precedents, in despite of the above judicial charge of cant and puerility.

These instances may suffice to prove, that the courts can defer to authorities, when they happen to be so disposed. To cite examples on the other hand, of deviations from former decisions, must be almost superfluous. Those who are acquainted with Westminster-Hall require nothing more than their daily and hourly experience to convince them of the fact, that the "fetters" of precedent may be shaken off at will; whilst every second page of the voluminous reports furnishes specimens of the various manœuvres by which this is to be effected.

66

Many of our readers will probably recollect the following speech of a living judge, eminently distinguished for his judicial qualifications: Sir, if you quote as many cases in point as there are persons in court, I shall disregard them all." (a) But this language is too bold and candid for ordinary occasions; it is far more convenient to gloss over a departure from precedent by specious reasoning and mystification. A few cases, taken at hazard out of a multitude, may serve for the information of the general reader,

To begin with Lord Mansfield-ab Jove principium-upon whom more extravagant praises have been lavished, than upon any judge that ever sat upon the bench,-the founder, as one of his eulogists styles him, (b) of the commercial law of this country, -a feat, be it remembered, which he performed by his own plenary power, without the participation of King, Lords, or Commons. We have seen that stare decisis was sometimes his maxim, and that he would not overrule a case, although it was shocking. In Walton v. Shelley, (c) however, he was in a different mood. "The old cases," he remarked, "upon the competency of witnesses, have gone upon very subtle grounds.-But what strikes me is the rule of law founded on public policy." So the rule of law founded upon policy became the order of the day, and the old cases were consigned to oblivion. The public had a right to suppose that the law was now settled. But no; twelve years afterwards, Lord Kenyon, preferring the old cases

(a) And why, if he has the power, should he not? Why should the blunders of one age be a rule of conduct for the succeeding? Why should a reasonable being acquiesce in absurdity and injustice, because his ancestors have acquiesced in them? Why should he not rather adopt the sensible maxim of the

civil law?" Quod non ratione introductum,sed errore primum, deinde consuetudine obtentum est, in aliis similibus non obtinet." Dig. 1. tit. 3. s. 39.

(b) Evans's Decisions of Lord Mansfield. vol. i. p. 9. (e) 1 T. R. 300.