Page images

inconveniences happen in that interval which will occur between the promulgation of the new law and the full and perfect knowledge thereof, in those who are concerned in that law. And if there were no other advantage of the continuance of old laws above the introducing of new, but this, yet it should make people very shy and careful in changes, and most perfectly to demonstrate, that the advantages of the change would be so great that it would preponderate this very single consideration, viz, the notoriety of the old, and the novelty of the new.

"It is most certain, that time and long experience is much more ingenious, subtile and judicious, than all the wisest and acutest wits in the world co-existing can be. It discovers such a variety of emergencies, and cases, that no man would otherwise have imagined; such inconveniences also. And on the other side, in every thing that is new, or, at least in most things relating to laws, there are thousands of new occurrences, and entanglements, and coincidences, and complications that could not possibly be at first foreseen. And the reason is apparent, because laws concern such multitudes, and those of various dispositions, passions, wits, interests and concerns, that it is not possible for any human foresight to discover at once, or to provide expedients against, in the first constitution of a law. Now a law that hath abidden the test of time, hath met with most of these varieties and complications, and experience hath in all that process of time discovered these complications and emergencies, and so has applied suitable remedies, and cures. So that in truth, ancient laws especially, that have a common concern, are not the issues of the prudence of this, or that council or senate, but, they are the productions of the various experiences and applications of the wisest thing in the inferior world, viz. time; which, as it discovers day after day new inconveniences, so it doth successively, apply new remedies; and indeed it is a kind of aggregation of the discoveries, results and applications of ages and events; so that it is a very great adventure to go about to alter it, without very

great necessity, under the greatest demonstration of safety, and convenience imaginable.

"But another extreme is, an opposition to all amendments, as if what has been once settled for law must stand everlastingly without any alteration. By long use and custom, men, especially that are aged, and have been long educated in the profession, and practice of the law, contract a kind of superstitious veneration of it beyond what is just and reasonable. Laws were not made for their own sakes, but for the sake of those that were to be guided by them; and if they be or are become unuseful for their end, they must be amended, if it may be, or new laws substituted, and the old repealed. How laws become, or are unuseful to their end upon two accounts : 1. When in their very constitution they are unjust, and impossible to be borne without remarkable and uncommon inconvenience or 2. When a law, though never so good in its first institution, yet by reason of some accidental emergencies that de most usually happen in tract of time either becomes obsolete and out of use or weak, and unprofitable to its end or inconsistent with some superinduction that time and a variety of our occasions have introduced.

"So that it seems apparent, that as, on the one side something may seem fit to be done in relation to the amendment of the laws, yet, on the other side it is necessary, that exceeding caution be used, as well touching the matter as the manner how, and the persons by whom, and the seasons wherein such an amendment may be made. For the matter: 1. That nothing tend to the alteration of the government in any measure; for that were to introduce ruin and confusion: 2. That nothing be altered that is a foundation, or principal integral of the law; for these are very sound, and ought not to be touched lest the whole fabric be endangered. We must do herein as a wise builder doth with an house that hath some inconveniences, or is under some decays. Possibly, here or there, a door or window may be altered, or a partition made; but, as long as the foundations, or principals of the house, be sound, they must not be tampered with. The inconveniences.

in the law, are of such a nature, as may be easily remedied without unsettling the frame itself; and such amendments, although they seem small and inconsiderable, will render the whole fabrick much more safe and useful."

"Touching the manner and persons, these things are to be observed, 1. That it be done deliberately and leisurely. Ant attentive consideration will every day ripen the judgment of those that shall be employed in such a service farther than they can at first imagine. 2. Let every point be fully debated and impartially examined before it fix into a resolution. 3. What can be done by the power and authority of the court and judges without troubling a legislature for such things. And truly this would go a great way in the reformation of things amiss in the law. For it sometimes falls out that an unnecessary application to the legislature, in things that are otherwise curable, breeds unexpected inconveniences. What the poet says of miracles I may say in this case,

"Nec deus, intersit, nisi dignus vindice nodus,

[ocr errors]

4. In these remedies that are given by the legislature, let it be particular and as little left arbitrio judicis as may be. Upon such a remission, forward men will do too much, but wise and cautious men will do too little. Wise and honest men desire to understand their rule; though some things are of such a nature, as must, in the particular application, be left to the judges and officers of courts, as the forming, and modeling of wills, process, pleadings, and other proceedings in conformity, and subserviency of what is to be settled by the legislature in this behalf. 5. Let no laws of this nature have a retrospect, but let the time that they shall be put in execution, have such a prospect, that men may not be surprized by the change of things, but may be fitted for, and conusant of it."

The above is an abstract of chief justice Hale, to which I may add some observations of my own. It will be found extremely difficult, if not altogether impossible, to get a court to budge in a matter of reform, either in the construction of


the law, or in the practice at the bar. The causes are two. 1. Attachment to decisions; and 2. Timidity of mind in effecting a reform. Hence it is, that whatever improvement has been made, or will be made, must come from the legislature. I speak of that province or sphere within which the courts have full power to alter or reform principle, or prac tice. For beyond this, they can but suggest as other individuals, such amendments to the law, as it may have come in their way to see to be requisite. But within the sphere of construction, and rules of practice, they cannot but have power equi potens with the legislature. For the practice of the court is the law of the court; and no judge can be so constrained by a construction of statutes, as to be absolutely bound, to follow, what was originally unreasonable or absurd; or what may have become so, by a change of situation, and circumstances of a people. The stare decisis will be a consideration, but not a talismanic charm or spell, to bind the faculties of a judge and keep him from thinking a little for himself. So far as I have had experience, the error has been, the too tenacious adherence to decisions, both in matters of law and practice. But it may be said, it is the least dangerous extreme. Grant it, but still it is an extreme.

There are cases of construction where a change cannot be made without the interposition of the legislature; as where such construction has become a rule of property, or contract; and so in fact a law so far as respects what has passed under it; and it may require the publicity of a legal repeal of a construction which may be considered as having become a part of the statute; or of the application of a rule of the com

mon law.

But in the nature of the case it cannot only be a court in the last resort, that can be competent to such a trust, or to undertake such a task. And, hence it is usual, and perhaps can only be from some chief justice of a court, or chancellor, that such improvement can arise. There have been great minds in such a situation who, have given philosophy, and liberality, to the science of the law;

"Enlarged the former narrow bounds,
With nature's mother wit."

A Mansfield, a Hardwicke, have had this praise. The bulk trudge on through the slough as Hodge did even after the bridge was built; so far are they from attempting to build a bridge. Such may have the praise of being what are sound lawyers; but must be contented with this, and cannot be called great judges. I will admit, that it is only one who has traversed all space of the legal science; or in the pithy language of the great Baron, have obtained the vantage ground of science, that can venture such a leap, or in fact ought to venture it. They will break their necks if without such just confidence in themselves founded upon the actual fact of reading and reflection and great original judgment, they attempt it. But where such a mind happens to be at the head of the highest court, little interposition of the legislature, or at least much less, will be required in matters that respect a reform of the law. Will any man say that the legislature of England, could, in many years, have given such a spring to the dictates of common sense and such reason as some judges have given in the course of a short sitting on the bench. The legislature can act only by detail, and in particulars, whereas the able judge can remove at once, or alter, what was originally faulty or has become disproportioned in the building. But no one but a skilful architect, and who can have the whole edifice in his mind, with its proportions ought to be suffered to attempt this. The legislature therefore, but in special cases, ought to be called upon for a reform in the construction, or practice of the law. But where a court who has power, will not reform a construction that is no longer applicable to the circumstances of a government, or the circumstances of a people; or a practice that has become absurd or unintelligible, what can the legislature do, but interfere? Where a struggle for a reform is founded in such pressure, it will have its vent even though it should blow up a valuable principle, or the whole constitution together.

« PreviousContinue »