Q}nrn?ll ICam irlynnl ICibrary ($tft of MR. E, J. CARTER CLAYTON, NEW YORK Digitized by Microsoft® Cornell University Library KD 693.R16 3 1924 021 651 215 DATE DUE Aua^ (tniitfiM ni ir> I . iimil**^ M6« *«4«*m5 AUnH : i CATLOKt) ^niNTCDtNU S.A. Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® THE SCIENCE Legal Judgment. DESIGNED TO SHOW THE MATERIALS WHEREOF, AM) THE PROCESS BY WHICH, COURTS CONSTRUCT THEIR JUDGMENTS; AND ADAPTED TO PRACTICAL AND GENERAL USE m THE DISCUSSION AND DETERMINATION OF QUESTIONS OF LAW. BY JAMES .SAM, OF THE INNER TEMPLE, BARRIOTlEK AT LAW. WITH EXTENSIVE ADDITIONS AND ANNOTATIONS, BY JOHN TOWNSH.END, OF THE NEW TORE BAB. NEW YORK: , BAKER, VOOEHIS & CO., LAW PUBLISHERS, 66 Nassau Stebet. 1871. Digitized by Microsoft® I>^3K I C^-^fUc.^.J) Entered, according to Act of Congress, in the year one thousand eight hundred and aerenty-one, by BAKER, VOORHIS & CO., In the Office of the Librarian of Congress, at Washington. Baker t Godwin, Printers, Printing-Honse Square, New York. Digitized by Microsoft® PEEFACE. The first and only Englisli edition of Ram's Trea- tise ON Legal Judgment was published in 1834 ; it has long since been out of print, and copies of it have become very scarce ; while the death of the author precluded the hope of a second edition at his hands. The book, soon after its publication in England, was reproduced in America in a very unattractive form, as part of the series of " The Law Library." The work presents those features of painstaking and erudite research which was the peculiar character- istic of all the efforts of its distinguished author; and it has always stood very high in the estimation of the bench and bar. The copies in the market were quite inadequate to the demand, and a new edition has long been needed. The present edition, besides being a literal reprint from the English copy, has incorporated some exten- sive additions from the English and American reports. These additions, occupying fully one-third of the vol- Digitized by Microsoft® 4 PKEFACE, ume, are indicated by being inclosed within brackets. Besides the additions to the text, the appendix and index are new. The I^ditor, while conscious that he might have done more, confidently believes he has done enough to materially enhance the value of a production which was already so deservedly popular among the best minds of the profession. New York, July, 1871. Digitized by Microsoft® CONTENTS. CHAPTEE I. INTRODUCTORY . . , . , . 17 CHAPTEE II. OF THE FOLLOWING MATERIALS OF A JUDGMENT; 1. Certain General Principles of the Law of England, 2. The Common Law, 3. Customs of some Cities aud Places, 4. Common Opinion, 5. Pleadings, 6. Maxims, 7. Rules for the interpretation of Acts of Parliament, Deeds, and Wills ...... 33 CHAPTEE III. OF CASES ....... 47 CHAPTEE ly. OF RULES . . . . . . . 27 CHAPTEE V. OF DICTA EXPRESSED ON THE BENCH ... 88 Digitized by Microsoft® b CONTENTS. CHAPTEE VI. OF THE POLLOWINa ARGUMENTS : 1 . Convenience, Public Policy, and Inconvenience, 2. Analogy, 3. A fortiori, that is, a minori ad majus, or a majori ad minus, 4. Hx absurdo ^ . . . . . HO CHAPTEE YII. OF PRACTICE ...... 121 CHAPTEE YIII. OF LEX MERCATOEIA; the law or custom of MERCHANTS 127 CHAPTEE IX. OF THE CIVIL LAW ..... 133 CHAPTEE X. OF THE CANON LAW ..... 143 CHAPTEE XI. OP THE LAW OF NATIONS .... 147 CHAPTEE XII. OF CERTAIN TEXT AND OTHER BOOKS . . . 15() CHAPTEE XIII. OF REPORTS 174 Digitized by Microsoft® CONTENTS. 7 CHAPTER XIY. OP PRECEDENT ; CONSISTING OF ONE OR MORE THAN ONE DECISION IN BANK, OR IN THE HOUSE OP LORDS. Section I. Of Adherence to one Decision . . 196 II. Of Adherence to two or more Decisions . 212 III. Of Departure from one Decision . . 215 IV. Of Adherence to a Fixed Doctrine . . 228 V. Of Discordant Decisions, or Series of Decisions 242 CHAPTER XY. of DISTINGUISHING A PRESENT CASE FROM A FORMER CASE, OR OUT OF A SETTLED RULE OR DOCTRINE . . 248 CHAPTER XYI. OF DECIDING ON PARTICULAR CIRCUMSTANCES . . 256 CHAPTER XYII. OP DECIDING NEW CASES .... 268 CHAPTER XYIII. OF ESTIMATING AUTHORITIES. Section I. Of the Comparative Value of Certain Authorities 283 II. Of Circumstances, which may increase the value of an Authority .... 299 III. Of Circumstances, which may lessen the Value of an Authority, .... 316 Digitized by Microsoft® CONTENTS, CHAPTEK XIX. OF CERTAIN DUTIES OP A JUDGE, OR COURT 321 Section I. Of certain Facts illustrative of Difficulty . 326 II. Of Difficulty in interpreting Instruments . 337 III. Of gaining Information from an Officer of a Court ; from Civilians ; and from Merchants 344 IV. Of learning the whole Truth of a Case reported 347 V. Of hearing Arguments of Counsel . . 352 VI. Of obtaining the Opinion of another Judge, or Court ..... 361 VII. Of Bias ..... 376 VIII. Of postponing the Delivery of Judgment . 383 IX. Of looMng forward to the Consequences of the Judgment, .... 394 APPENDIX. I. ARCHDEACON PALEy's ACCOUNT OP THE CAUSES OP THE NU- MEROUS UNCERTAINTIES AND DIFFICULTIES ARISING IN THE ADMINISTRATION OF JUSTICE . . . 399 II. ESSAY ON JUDICATURE, BY LORD BACON . . 407 III. ON THE PROPRIETY OP COURTS, AND PARTICULARLY COURTS OP LAST RESORT, ADHERING TO THEIR OWN DECISIONS 413 IV. ON THE MISCHIEVOUS RESULTS OF ABANDONING THE PRIN- CIPLE " STARE DECISIS." FROM SHARSWOOd's LAW LEC- TURES. LECTURE 11 . . . . 423 Digitized by Microsoft® THE SCIENCE OP LEGAL JUDGMENT. Digitized by Microsoft® Digitized by Microsoft® THE SCIENCE OP LEGAL JUDGMENT. CHAPTER I. INTRODUCTORY. The subject of the present Treatise leads to the observation, that there are three kinds of legislation, by which the laws of England are made. One manner of making law is prospective, legis- " lating on facts which it is considered will or may- exist, and for which the legislature accordingly pro- vides a written law. The statute law of England is an example of this kind of legislation. A second manner of making law is prospective and adoptive, legislating on facts which it is consid- ered will or may exist, and for which the legislature therefore provides a written law. This sort of legis- lation takes place, when any country adopts the laws, or a branch of the laws, of another state. It is known therefore in England, since a part of the Roman civil law is adopted by the Court of Chancery, and the Ecclesiastical and Admiralty Courts, of that country. A third manner of making law is, to wait for facts that shall occasion a lawsuit; on which facts, when the suit arises, a court of law gives judgment ; Digitized by Microsoft® 18 INTBODUCTOET. a judgment that is constructed of certain materials whicli are law, and is when delivered part of the law of the land. Those materials consist of the "divers laws withm the realm of England," mentioned by Coke; and of which, among others, he enumerates,— the law of the Crown; the law and custom of Parliament; the law of nature; the common law of England; the statute law; customs reasonable; ecclesiastical or canon law; civil law; the law of merchants.* They consist also of the several "fountains or places," from which the same learned writer observes, the "proofs and argu- ments" of Littleton are drawn;— as, maxims, prin- ciples, rules, intendment and reason of the common law; books, records, and other authorities of law; the form of good pleading ; approved precedents and use; common opinion of the sages of the law; and the arguments, ah inconvenienti ; a major e ad minus, ' from the greater to the lesser, or from the lesser to the greater; d simili ; a pa/i'i ; ab utili vel inutili ; and ex abswdo? When, with reference to the Courts of Westmin- ster Hall, it is said, " the judges are to declare the law, not to make the law," "^w dicere et non jus da/re^^ * the proposition is not, it is apprehended, in all senses, correct. A court, when it constructs a judg- ment, forms it of certain materials, which are law; those materials the court does not make, and so far the judgment is not creative of law. But the judg- ment or body, into which the materials are wrought, is law; and is law, although the materials are ill 1 Co. Litt. 11 b. See also Doct. & 563; 1 Atk. 353 ; 4 Ves. 332; 4 Bro. St. Dial. i. C. 0. 458; 1 Mylne 3 Atk. 627. See, also, 1 Atk. 47. ' 3 Bl. Com. 395, 396, 446, 451. ' Gregory ii. Molesworth, 3 Att. " Whittington v. Attorney General, 626. See, also, 1 Atk. 47. 2 Dick. 616. = 1 Tyrwh. 238. Digitized by Microsoft® OF CASES. 53 and, withotit stating the reasons of it, certifies to be of its opinion.^ A judicial opinion, in answer to a question caused by a suit, may consist of one judgment of the single judge of a court, or of all the judges of a court ; or it may consist of separate judgments of different judges of a court. When it consists of separate judgments of different judges of a court, and each of these judg- ments is rested on an expressed reason, this reason may be the same in each judgment, or it may be different in each judgment. A different reason in each judgment is frequently met with.^ And when, in any case, separate judgments are given, they may form one judicial opinion in answer to the question caused by the suit, notwithstanding each judgment is grounded on a different reason : " the difference in reason is not a difference in opinion." * The expressed reason of a judgment is an impor- tant ingredient in it. General language on this point is, — " The reason of a res9lution is more to be consid- ered than the resolution itself:"* "The reason and spirit of cases make law ; not the letter of particular precedents." ® The expressed reason of a judgment is important on this account, — that the judgment in which it is found may be an authority to apply the same reason in determining questions caused by other suits. For instance, in Standen v. Standen,® a case on the inter- pretation of a will, the reason or ground of the judg- ' Sadham % Mee, J Bing. 695 ; 1 Ashby v. White, and Smith v. Richard- Mylne and K. 32, 54. son, above. " Ashby a. "White, 2 Lord Raym. * By Holt, C. J., 12 Mod. 294. 938, 950; Smith v. Richardson, Willes, ° By Lord Mansfield, 3 Burr. 1364. 20, 23. ' 2 Ves. Jun. 589. ' Darcy v. Jackson, Palmer, 25V ; Digitized by Microsoft® 54 EAM ON LEGAL JTJDaMEKT. ment is, the court's obligation to satisfy all the words of the will, and its inability to satisfy them, except by construing them to be an execution of a power. And in a subsequent case, Lewis v. Lewellyn, that decision was relied on as an authority to apply that reason or ground in the interpretation of a will ; Best, J., saying, "That is the general principle of Standen v. Standen, and we must look only to the general principle, for it is impossible to find two cases precisely alike. . . . The principle is, that where there is nothing for the will to operate upon, but with reference to the power, it must operate as an execution of the power."^ It is often inaterial that the reason of a judgment be expressly stated, in order that the extent, to which it is authority, may be clearly marked; for it fre- quently happens that a case decided on a particular ground, as length of time between the occurring and the prosecuting of a right, would have received a dif- ferent decision if that ground had been wanting.* When a decree in chancery dismisses a bill, and the ground of the dismissal does not appear, the case may not be an authority to support a particular posi- tion contended for. Thus speaking of Priest v. Par- rot,^ a case of a bill in equity on a bond, and where the bill was dismissed, Bayley, J., says,— " Priest v. Parrot is by no means a decisive authority to show, that such a bond may not be enforced in a court of law ; for the decree was, that the bill should be dis- missed ; and that decree may have proceeded on the ground that the bond might be enforced at law. If the decree had been, that the bond shoul4 be deliv- ' 1 Turn. & E. 104. 166 ; Andrew v. Wrigley, 4 Bro. C. C. " Bonney *. Ridgard, 1 Cox, 149, 135, 138. cited 4 Bro. C. C. 138, and IV Vea. ' 2 Yes. 160. Digitized by Microsoft® OF CASES. 55 ered up to be canceled, then it would have been a strong authority in support of the position contended for."i The importance of expressly stating the reason of a judgment is further shown by the circumstance, that often a particular ground is expressly mentioned to be the ground of the judgment.* In a cause in the House of Lords, Lord Eldon, adverting to a case which had been stated at the bar, and observing that there the judgment of the court below had been reversed, continued his remarks by saying, — " It was their lordships' habit on such occa- sions — ^he wished it had always been their habit when they dissented from the courts below — ^to state the reasons of their judgment at length. It was always useful to state the reasons which influenced the mind of the judge in giving judgment. If pronounced by a judge, from whose decision there lay an appeal, counsel, and the advisers of parties, had an oppor- tunity of weighing well the grounds of the decision ; and when the matter came to the court of last resort, where the principles were settled, which must regu- late the decisions of inferior tribunals, it was their duty to consider all the principles, to which facts, in all their varieties, might afterwards be applied."* [In the Life of Lord Eldon, by Twiss, the biog- rapher refers to this subject as thus : " Until our own time it was the practice of the House of Lords to pronounce its judgments without a statement of the reasons. Such a practice Lord Eldon did not think it consistent with his duty to continue.* His opinion ' 6 Barn. & Or. 138. Grueber, 3 Meriv. 146 ; Ex parte Cham ' Miller v. Taylor, 4 Burr. 2407; bers, 1 Mont. & Mac. 134. Hare v. Groves, 3 Anstr. 699 ; Dicks ' 2 Dow, 383. V. Lambert, 4 Ves. 731 ; KnatchbuU v. ■* In 2 Dow, 383, Wight v. Eitchie. Digitized by Microsoft® 56 EAM OK LEGAL JUDGMENT. upon this subject is thus reported : " It was always useful to state the reasons which influenced the mind of the judge in giving judgment. If pronounced by a judge from whose decision there lay an appeal, coun- sel, and the advisers of parties, had an opportunity of weighing well the grounds of the decision ; and when the matter came to the court of last resort, where the principles were settled which must regulate the deci- sion of inferior tribunals, it was their duty to consider all the principles, to which facts, in all their varieties, might afterwards be applied." [And where a case was of first impression, he thought it necessary not only that the reasons should be given, but that they should be given fully. Thus, in Butcher v. Butcher, 1 Yes. & Bea. 96, he said: " Upon a subject which has been so much the topic of discussion and decision, it would be a waste of time to trace the doctrine, from beginning to end, through all the cases, as Tias heen my habit, which I hope will produce at least this degree of service, that I shall leave a collection of doctrine and authority that may prove useful."^] A case occurs, in which it was so doubtful on what precise ground it turned, that it was not re- ported.* A judgment may be valid, although the reasons of it are faulty: a judge may think that a judgment given was well given, and ought to be affirmed, though he does not approve of the reasons given for that judgment.* Best, C, J., delivering the judgment ■ 2 Life of Lord Eldon, by Twis3, = 1 Stra. sn. See also 2 Bro. C. C. eh. Mii. 86, and Monntford v. Scott, 1 Turn, k ' Chatfield v. Paxton, cited 2 East, E. 274. See also 4 Bing. 241. 471; 5Tauiit. 15Y. Digitized by Microsoft® OF CASES 57 of the Court of Common Pleas, in a case on the inter- pretation of certain statutes, speaks thus of the author- ities to be found : — " If these are consistent, we are bound by them, even although our own minds do not approve the principles on which they rest. There would otherwise be no certain rule which could be known to those who are required to conform to the law. If the decisions are contradictory, we are to consider the reasons given for them by those who pronounced them. If our predecessors have given no reasons for their judgment, or the reasons given for conflicting judgments are equally unsatisfactory, we are to put that construction on the statutes, which our own unfettered judgment induces us to think the legis- lature intended should be put on them."^ In a case where, on an indictment for a misde- meanor, the defendant had been adjudged to be fined, and to levy the fine a levari facias had issued, an authority for this writ was a case decided in the reign of one of the Stuarts, And Abbott, C. J., in reply to an objection made to this case, observed, — " It is said that this writ has issued on the authority of a single case in the reign of one of the house of Stuart ; and we are desired to say, that cases in those reigns are not to be regarded as law. To that, how- ever, I cannot assent." And, to the same effect. Best, J., answering the same objection, stated, — " It is said that that case was decided in the reign of Charles II ; but if that were an argument, many cases decided by some of the most enlightened judges. Lord Hale and others, would be swept away."^ It remains to notice the authority at law of a case ' 4 Bing. 241. See also 243, 244, = The King v. Woolf, 2 Barn. & Aid. and 8 Burn. . Durn. and E. 188 ; Goodtitle w. Ot- '8 Bing. 536, 637, 567. way, 7 Durn. and E. 399; The King • ' 14 Ves. 449; 16 Ves. 196, 197. V. Harringworth, 4 Maule and S. 360 ; Digitized by Microsoft® 84 OP BULBS. alttougli both tlie principle and the policy of the rule may be questioned ; ^ or although in some particular cases, it may be " productive of hardship and oppres- sion;"^ or although it has been "objected to and lamented by great authority ;" ^ or although " the courts have always shown some dissatisfaction at the rule, and endeavor, if there is any room to do it, to distinguish cases out of it ; have said indeed they would not break the rule, but at the same time have said, they would not go one jot further, and have been fond of distinguishing cases since, if possible."* " Kules are to be applied according to circum- stances, but circumstances are not to control rules." ^ " If," says Lord Loughborough, " there is a general hardship affecting, a general class of cases, it is a con- sideration for the legislature, not for a court of justice ; if there is a particular hardship, from the par- ticular circumstances of the case, nothing can be more dangerous or mischievous, than, upon those particular circumstances, to deviate from a general rule of law. The consequence is, that law ceases to be a system." * • And Tindal, C. J., when adhering, to a rule to he inferred from decided cases, observed, that he thought it " a safer course upon this occasion, as I find has been the opinion of other judges from the earliest periods of the law, to adhere to any rule, which can be safely inferred from the cases, rather than to sub- stitute another, although it may appear upon general principles more reasonable and more just." '' [" It has been directly decided in the case of The = 3 Russ. 435. « 3 Atk. 68. ' 1 Burn, and K 8; 1 Burn, and ' By Lord Eedesdale, 2 Sell, and E. 415 ; 1 Bing. 280 ; 2 Ves. Jun. 426, Lef. 239. 427. " 2 Ves. Jun. 426. = 2 Tounge and J. 623 ' 8 Bing. 557. Digitized by Microsoft® OP EULES. 85 s People V. Phelps (5 Wend. 10), and the principle again reiterated and declared to have been settled in the former case in The People -y. Warner (Id. 2Y1.) ]N"ow, if this had been an ohiter dictum merely, or if we could see that some important principle had been overlooked by the court, and not considered, we might have disregarded this case as an authority. Such, how- ever, is not the fact. The construction and the effect of the provision of the revised statutes in question was the very point on which the case of The People V. Phelps turned. The court, too, were aware of all the decisions at common law, and of all the statutory enactments necessary to be considered in coming to a right judgment upon the question before them. Under such circumstances, we must regard this de- cision as binding upon us, or we must abandon the principle of ' stare decisis,^ and make the stability and certainty of the law depend on the individual opinions of successive judges. It is better that an erroneous rule should be endured, till it can be cor- rected by a higher tribunal, or changed by the legis- lature, than that the law should be subject to constant fluctuation and change." ^ [" In Brown v. Scofield, 8 Barb. 239, it was sug- gested that the common law of England was not adapted to the subject of inland navigation in this country ; and so, as to large rivers, it has been decided by the courts of Pennsylvania. So far, it seems, the principles of the civil law prevail in that State. No doubt the genius of our institutions, the nature and condition of the country, and the pursuits of the people, make some portions of the common law, and to a certain extent, necessarily inapplicable here. But, ' The People v. Tredway, 3 Barb. 474. Digitized by Microsoft® 86 OF RULES. except as to our internal polity, and alterations made by tlie Constitution and by positive enactments, there is not mucli diversity ; and certainly not in this State. And, as the courts are to expound, and not make the law, especially on questions affecting real estate, sta/re decisis is the safe rule. The treatise of Lord Hale has received high commendation in this country ; and, in this State, that portion of it relating to this subject has been sanctioned, by our courts, and its doctrines, I think, may be applied to this case, and justice be done to all parties." ^J It is not disputed that a settled rule is law. But it is sometimes a matter of difficulty to ascertain the rule,^ and a matter of equal difficulty to apply it to particular circumstances.^ A difficulty of the latter kind is thus mentioned by Vaughan, B. : " It is not upon the principles of law that I am constrained to differ from my learned brothers, but upon the applica- tion of that law to the particular facts of this case. That a general release is an absolute bar to all actions, is admitted on all hands, and was so decided in Dyer's Reports ; it is not, therefore, upon the rule itself, but upon the application of the rule, that any difference exists." * To the like effect it is said by Sir A. Hart : " That the rule of a court of equity is, that a man shall not be compelled to answer to any facts which may tend to criminate him, or subject him to penalties or forfeitures, is undeniable. But the due application of this rule to the circumstances of individual cases has been, at all times, a matter of much controversy ; and so much so, that, I believe, not less than 100 cases are to be found in- the reports, in which the question ' Morgan v King, 18 Barb. 28Y. ' 12 Price, 124. " 1 Ves. and B. 491. * 2 Younge and J. 414. Digitized by Microsoft® OF EULES. 87 was, whether the defendant was or was not bound to give the discovery sought for. The due application of the rule to the present case is that which I have labored to arrive at." ^ A rule is a principle of the law ; ^ and many prin- ciples recognized in, or made the ground of, a judgment, appear to be rules.^ A principle is a common ground of decision." * [When principles are ascertained, they are as authoritative upon the courts, and control the decisions in particular cases as absolutely, as a legis- lative enactment.^] • 1 Sim. 426. ' Co. Litt. 11 a; 1 Keuyon, 461 ; 1 Dow and CI. 3*79, » 5 Durn. and E. 385 ; 3 Barn, and Adol. 34 ; 3 Bing. 698 ; 3 MeriT. 211 278. * The Bang v. Debenham, 2 Barn, and Aid. 186 ; Fletcher v. Lord Sondes, 3 Bing. 598 ; Mx-parte James, 8 Ves. 337, 345, 348 ; HiUary v. WaUer, 12 Ves. 239, 270; Dearie v. Hall, and Loveridge v. Cooper, 3 Russ. 1, 58, 60 — 2 Bos. and P. 24 ; 5 Durn. and E. 385 ; 7 Durn. and E. 148 ; 2 Barn, and Aid. 610, 612 ; 2 Brod. and B. 505 ; Ambl. 249; 3 Ves. 671; 7 Ves. 195^ 10 Ves. 385, '393, 394; 13 Ves. 265 ; 2 Meriv. 103 ; 3 Meriv. 277 ; 1 Jac. and ^Y. 119, 244, 247, 248. In these au- thorities will be found mentioned a variety of principles. ' Commonwealth ii. Chapman, 13 Met. 68; Martin v. Martin, 25 Ala. 201; Powell o. Brandon, 24 Missi. 343. Digitized by Microsoft® CHAPTER y. OF DICTA EXPEESSED ON THE BENCH. It commonly happens that in the progress of a cause, and frequently in the course of a judgment, which a judge delivers, he has an opportunity of expressing two different kinds of opinion, namely, judicial and extra-judicial. A judicial ^ opinion is one, that is on the question before the court.^ A judicial opinion may, it would seem, also be characterized, as " a resolution or deter- mination," "a direct solemn opinion," a "formed decisive resolution," an " adjudication," a " professed or deliberate determination." * An extra-judicial* opinion may be,, an opinion given on a question, that it was unnecessary to decide in the case where it was given ; ^ or on a point, which was not the point then in question ;*' or only an opin- ion declared incidentally in the argument of the case ; ' or a proposition generally expressed, and which the case, or the circumstances of the case, did not call for;^ or an opinion on a point, that was not the point, which was argued before the court, or upon which the court pronounced judgment ; ' or words uttered upon ' 1 H. Bl. 63 ; 5 Maule' and S. 185 ; 3 Barn, and Aid. 122 ; 5 Barn, and Cn. 3. Barn. & Aid. 122 ; 4 Barn, and Adol. 576 ; 8 Barn, and Cr. 519. 207. . '4 Taunt. 626. " Wilies, 666. See also 5 Taunt. ° 1 Stra. S'!. 159, and 1 Crompt. and M. 745. ' Ibid. = 4 Burr. 2068. » 5 Taunt. 163, 159. * 2 Bos. & P. 375 ; 1 H. Bl. 59 ; 4 "3 Barn, and Aid. 122.. Taunt. 626;. 5 Maule. and S. 185, 186;, Digitized by Microsoft® OF DICTA EXPRESSED ON THE BENCH. 89 a point, totally different from that, wliicli the court had then to decide;^ or a statement, that was not essential to the decision of the case ; ^ or that was. wholly unnecessary for the decision of the actual points, which were before the court ; ^ or an opinion, not called for by the case, and which it was unneces- sary to give.* [Thus Chief Justice Cockburn, refer- ring to two decisions as not conclusive, says : " But in both those cases * * the wide doctrine embraced in the judgment was wholly unnecessary to the decision, and we, therefore, feel ourselves warranted, and, indeed, bound to consider the question as one not concluded by authority and upon which we are called upon to form our own judgment." ^] . One kind of extra-judicial opinion is, an opinion called an obiter^ dictum, or saying; which is some- times portrayed in these terms, — " That dictum is an obiter saying only, and not a resolution or determina- tion of the court, or a direct solemn opinion of the Judge from whom it dropped;' no formed decisive reso- lution, no adjudication, no professed or deliberate determination:"^ "These words are nothing more than an oMter dictum, uttered upon, a point totally different from that, which the court had then to decide :" ® " It seems to have been a mei'e obiter opin- ion, not called for by the case, and which it was unnecessary to give :" ® " What was dropped about it ' 1 Rnss. 48. ° 1 Burr. 153.; 2 Burr. 858 ; 4 Burr. ' 3 Rnss. "71,' 77. 2068; Willes, 666; 6 Barn, and Cr. ' 3 Euas. 74. 656; 1 Enss. 48 ; 2 Younge and J. 379. * 2 Younge and J. 379. ' 4 Burr. 2068. ' Banks d. Goodfellow, 22 Law " 1 Enss. 48. Times, N. S. 813 ; 39 Law Journal " 2 Younge and J. 379. Eep. 237 Q. B. Digitized by Microsoft® l1 ('' 90 OF DICTA EXPKESSED ON THE BENCH. in Calvin's case was a mere oUter opinion, thrown out by way of argument and example." \ Chief Justice Vaughan thus speaks of judicial and extra-judicial opinions,— " An extra-judicial opinion, given in or out of court, is no more than the prolatum or saying of him who gives it, nor can be taken for his opinion, unless everything spoken at pleasure must pass as the speaker's opinion. An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given, if no such, or a contrary opinion, had been broached, is no judicial opinion, no more than a gratis dictum. But an opinion, though erroneous, concluding to the judg- ment, is a judicial opinion, because delivered under the sanction of the judge's oath, upon deliberation, which assures it is, or was, when delivered, the opinion of the deliverer." * Dicta obiter^ or otherwise extra-judicial,* are, as well as judicial dicta, authority; materials, that is, which a judge is bound -to, in some degree, regard, in constructing a judgment which he gives.^ Dislike of giving obiter,^ or other'' extra-judicial, opinions, is often expressed on the bench ; and certain it is, that an opinion of either kind may be productive of much mischief; ^ because, being in some degree authority, a tendency of it is, to uphold a doctrine, or point, which perhaps on examination cannot be sus- ' 2 Burr. 858. '1 W. Bl. 101 ; 5 Durn. and E. 1 ; 'Vaugh. 382. 5 Taunt. 159; 1 Taunt. 671, BM; 3 = 1 Burr. 163; 4 Burr. 2068; 5 Barn, and Or. 156; 4 Bro. C. C. 37; Barn, and Cr. 556; 1 Russ. 48; 2 11 Ves. 529, 530; 19 Ves. 357, 360, Younge and J. 379. 365, 488. " 1 Stra. 37, 39 ; 1 H. Bl. 53, 64, ' Willes, 666. 59, 63 ; 4 Taunt. 626 ; 6 Taunt. 153 ; 3 ''2 Bos. and P. 375. Bam. and Aid. 122; 5 Barn, and Cr. " Willes, 666. p76 ; 3 Ru33. 71, 74, 76, 77. Digitized by Microsoft® OF DICTA EXPEESSEB OK THE BENCH. 91 tained, wMle the support which it derives from the dictum is sufl&ciently powerful to invite to litigation.^ Accordingly, at the outset of a judgment delivered by Willes, C. J., that learned judge said, — " I shall confine myself to the question before us, because I have observed great mischiefs arise from judges giving ohiter opinions."^ Also Heath, J., bears testimony, that " many judges have avoided giving extra-judicial opinions." ® And Lord Kenyon, speaking of the char- ter, which incorporated the College of Physicians, gays, " By what fatality it has happened, that almost • ever since this charter was granted, this learned body have been in a state of litigation, I know not ; and I cannot but lament, that the learned judges, in deciding the cases reported in Burrow, did not confine them- selves to the points immediately before them, and dropped hints, that perhaps have invited litigation." * Steel V. Houghton,® and probably Worlledge v. Man- ning,® is an instance, in which an extra-judicial opinion has been employed to uphold, if it did not incite to, a suit, which on discussion was found to be incapable of support.'^ [Perhaps Dain v. Wyckoff, 18 N. Y. 45 and 7 N. Y. 191, is another instance of the like kind; that case was for seduction of plaintiff's daughter; when the case was before the court, it was held the action would not lie because the woman alleged to have been seduced was in the defendant's employ, but the court added that the action could be maintained if the defendant had taken the woman into his employ ' 1 H. Bl. 53—63, on the dicta of * 1 Durn. and E. 287. Sir M. Hale, and Mr. Justice Hewitt ; ' 1 H. Bl. 61. ^ Dum. and, E. 287. See also 3 Barn. ' 1 H. Bl. 53, n., and cited ibid, 53, and Cr. 156. 61. "^ Wllleg, 666. ' 1 H. Bl. 53—63, on the dicta of = 2 Bos. and P. 375. Sir M. Hale, and Mr. Justice Hewitt. Digitized by Microsoft® 92 OF BICTA EXPBESSED ON THE BENCH. with the intent to seduce her. This hint was appar- ently acted upon, and on the second trial the plaintiff established a case within this dictum and succeeded.] Very commonly a character of a dictvm is, its capacity to be applied to more than one state of facts ; a capacity that is occasioned by the general language in which it is expressed. The value, however, which it bears when applied to one state of facts, it may not carry if applied to facts which are different. HuUock, B., speaking of a dictum of Holt, C. J., says,—" With respect to the decision of Lord Chief Justice Holt, it is uncertain under what circumstances, and as applica- ble to what state of facts, that dictum was delivered. It may be good in point of law, if applicable to a particular state of facts." ^ The subject of a debtor's fraudulent preference of his creditor ^ offers a fit illustration of the same doc- trine.® " A bankrupt, when in contemplation of his bankruptcy, cannot by his voluntary act favor any one creditor."* "Any payment made by a trader before an act of bankruptcy, and in contemplation of such act, and with a view on his part to give a prefer- ence to a particular creditor, is void."° "A trader cannot in contemplation of bankruptcy dispose of his goods of his own accord, without application on the part of his creditor. But it is not sufficient to avoid the delivery of goods by a trader, that such delivery be made voluntarily on his part, and that an act of bankruptcy ensues ; it must also appear that he had the act of bankruptcy in contemplation at the time of the delivery." ® These passages convey a general idea ' 3 Tounge and J. 112. * 1 Durn. and E. 157. ° See the Bankrupt Act, 6 Geo. IV, ' 2 Bos. and P. 587. . 16, B. 82. « 2 Bos. and P. 584. = 1 Bing. 448—450. Digitized by Microsoft® OF DICTA EXPRESSED ON THE BENCH. 93 of fhe law of preference, and for tliis purpose have been transcribed. In Hartshorn v. Slodden, W., being indebted to the defendant in 150^., for which he had given his promissory note, was applied to by her on the 10th September, 1800, for a further security, upon which he gave her a bond for payment of the debt in six months. After this, hearing that W. was in failing circumstances, the defendant, on the 29th November, in the same year, desired W. to let her have sonie of the goods out of his shop, in payment of her debt. To this W. agreed, the goods were sent, and he made out a bill of parcels to the defendant, in which he charged the goods at 90?., which was more than their value, and an endorsement was made upon the bond, for the receipt of 90?. in part payment of the debt. On the 9th of December following, W. committed an act of bankruptcy. Now, in this cause, involving the circumstances detailed, Lord Alvanley made these ob- servations: — "Nor has it ever been held, that if a creditor press for payment of his debt, and thereby obtaiu goods, that the intention of the bankrupt shall be called in aid to set aside the transfer. If the goods be delivered through the urgency of the demand, or the fear of prosecution, whatever may have been in the contemplation of the bankrupt, this will not vitiate the proceeding." And these observations, it is mate- rial to remark, were made in a case, where, to adopt the" language there used by Chambre, J., "the bank- rupt made a very good bargain ; for, in making out his bill of parcels, he charged the defendant a higher price than the goods were worth. It is true, that the defend- ant could not have put the bond in suit at that time, but still she might have injured the bankrupt's credit by being clamorous for her debt, and perhaps have pre- Digitized by Microsoft® 94 OP DICTA EXPEE8SED ON THE BENCH. vented him from continuing his trade." ^ In a case then so circumstanced, where an ingredient in it is, a benefit to the bankrupt 'by the delivery of the goods, occurs Lord Alvanley's opinion, that the debtor's contemplation of bankruptcy, " vrhatever may have been in the contemplation of the bankrupt," " will not vitiate the proceeding." And a similar opin- ion is expressed by Lord Ellenborough in Crosby v. Crouch.^ Suppose, however, a case, in which, by pres- sure for payment, the creditor obtains goods of his debtor, but a benefit to the latter is not an ingredient, here the debtor's contemplation of bankruptcy may vitiate the proceeding. Such a case is Thornton v. Hargreaves, where a bill of sale made by a debtor to certain of his creditors swept away the whole of his property; an efifect which caused the" bill to be in itself an act of bankruptcy. "Taking," said Lord Ellen- borough, " the conversation reported between the de- fendants and the bankrupt to be a threat of process, if they did not receive payment or security for their de- mand, I do not see how the execution of such a threat could put the bankrupt in a worse situation than the actual transfer of the goods did ; for that left him without any property, and he was immediately obliged to break up his business and leave his home. This would rather show, that he did not make the transfer by dint of threat, for he did not redeem himself even from any present dijBficulty by doing the act; which is the motive for such an act when really done under the pressure of a threat. And if he got nothing by evad- ing the threat, I should rather say that it was a volun- ' 2 Bo3. and p. 682. Ml East, 256. Digitized by Microsoft® OP DIOTA EXPRESSED '01? THE BBJfCH. 95 tary act and preference on Ms part as to the particular creditors.".^ The conclusion come to is, that the opinions of Lord Alvanley and Lord Ellenborough, on the need to inquire into the debtor's contemplation of bank- ruptcy, are not contradictory, but on the contrary are reconcilable and consistent, because they are affixed to different facts. • The whole of the subject, however^ now under consideration, the application of general dicta to different circumstances, is better stated, and from the same sources illustrated, by Alderson, J., in his judgment delivered in Cook v. Rogers, a case on preference by a bankrupt. That judgment is itself authority in the matter. " In all these cases, there are," says the learned judge, " two questions : one, whether the payment has been made in contemplation of bank- ruptcy ; the other, whether it has been made volunta- rily or not. These are questions of fact, which must be left to the jury, upon the circumstances of each case, and this consideration will, I think, reconcile all the decisions. The apparent contradiction arises from treating observations, which have really been made with reference to the peculiar facts of the cause under discussion, as general principles of law and of univer- sal application. Thus, in Hartshorn v. Slodden, Lord Alvanley said that the intention of the bankrupt should not be called in aid to set aside a transfer, but [?] in a case, as he says, where a creditor presses for payment of his debt, and tJierehy obtains goods. ' If the goods be delivered through the urgency of the de- mcmd, whatever may have been in the contemplation of the bankrupt will not vitiate the proceeding.' So, in Crosby v. Crouch, Lord Ellenborough considered it ' 1 East, 644. Digitized by Microsoft® 96 OF DICTA EXPBE8SED ON THE BENCH. immaterial to inquire into the bankrupt's intentions ; but that was because the other facts in that case estab- lished, that the delivery of the goods was 'not refer- able to any supposition of favor and preference, but to urgency and importunity on the part of the person ob- taining the deposit.' On the other hand, in Thornton V. Hargreaves, the motives of the bankrupt were, by the same learned judge, deemed material, because the threat of the creditor, if carried into effect, ' could not put the bankrupt in a worse situation than the actual transfer of the goods.' — 'He did not relieve himself even from any present difficulty by doing the act.' It seems to me, therefore, that the motives and intentions of the bankrupt may be material or immaterial, or, to speak accurately, may be more or less material, accord- ing to his situation, to the nature of the threat, and the degree and period of urgency by the creditor. In like manner we find, that in cases where the payment has been made before the debt was due, that circum- stance has sometimes been relied on as an indication that the payment is voluntary, and at other times has been said to be immaterial; but neither in the one case nor in the other do these facts of themselves fur- nish any certain criteria ; they are only ingredients in the whole question upon which the jury are to come to a determination. Threats on the part of the creditor are a strong circumstance to show, that the payment ensuing is not voluntary : but if, as here [the particu- lar case,] the party be not placed in a better situation by yielding to the threats, or if he disclose such a rea- son for preference that the threats could obviously have produced no perceptible effect on his mind, those are circumstances which afford a strong inference the other way. It has been urged, indeed, that the motive of the bankrupt in this case was altogether immate- Digitized by Microsoft® OF DICTA EXPRESSED ON THE BENCH. 97 rial, and if, as in Hartshorn v. Slodden, the payment had been clearly made in consequence of the threat, it might have been immaterial to examine whether the bankrupt were also actuated by any other motive ; as, for instance, if the money had been paid in order to get rid of an actual and honafide arrest; but when, as here, it is not clear what effect, if any, the threat of the ■creditor has produced, it was most material to ascer- tain what were the motives by which the bankrupt was actuated."^ A sound practical general rule, towards gathering the just meaning and extent of a dictum, seems to be, to confine it to the particular circumstances of the case in which it was spoken. This limitation of a dictum is expressly inculcated on the bench, in the following, among other,^ instances : " What was said by my brother Ashhurst in the case of Barry v. Eush, re- specting the admission of assets, must be taken to refer to the particular case then under discussion, but ■ought not to be extended further : " ® " Greneral lan- guage used by the court in giving their opinions in any case must always be understood with reference to the subject-matter then before them : "* " The case of Farmer v. Arundel, and De Grey's maxim there, is cited : it certainly is very hard upon a judge, if a rule, which he generally lays down, is to be taken up and carried to its full extent. This is sometimes done by counsel, who have nothing else to rely on ; but great caution ought to be used by the court in extending such maxims to cases, which the judge who uttered ' 7 Bing. 448 — 450. ' By Lord Kenyon, 6 Durn. and ' 1 East, 219 ; 3 East, 124 ; 1 Barn. E. 1. and Adol. 586 ; 4 Barn, and Adol, 76. * By Lord Ellenborough, 3 East, 123. 7 Digitized by Microsoft® 98 OF DICTA EXPKESSEB ON THE BENCH. them never had in contemplation. If such is the use to be made of them, I ought to be very cautious how I lay down general maxims from this bench." ^ " There are some dicta certainly which may be relied on ; but I think that if they are read, as all such dicta ought to be, with reference to the case then before the court, they will be found not applicable to the present sub- ject : " ^ " The cases which have been cited are no au- thority for this application : reliance has indeed been placed on some expressions of a general nature occur- ring in them ; but general words, whether uttered by a judge in court, or spoken elsewhere, or published in a treatise, must, on sound principles of logic and criti- cism, be limited to the subject-matter on which they are employed : the attempt to carry them further only leads to error : " ^ " It is always unsatisfactory to ab- stract altogether the reasoning of the court in any re- ported case, from the facts to which that reasoning is meant to apply ; it has a tendency only to misrepre- sent one judge, and to mislead another." * [Keferring to the case of Harrison v. Sterry,^ Rug- gles. Chief Justice, in Hoyt v. Thompson,® says : " Jts meaning as an authority must be qualified by the facts to which it was applied. It was unnecessary for the purposes of that case to state the qualification of the rule asserted, and for that reason probably it was omitted." In Cohen v. Virginia,'^ Chief Justice Mar- shall remarks : " It is a maxim not to be disregarded, that general expressions, in every opinion, are to be ' By Sir J. Mansfield, 5 Taunt. 162. ^ 5 Cranch, 312. ^ By Alderson, J., 9 Bing. 168. = 5 N. T. 344. ' By Lord Tenterden, 2 Barn, and '' 6 Wheat. 264; S. C. 5 Curtis' De^ Adol. 124. cisions, 9Y. * By Lord Manners, 2 Ball and B. 286. Digitized by Microsoft® OF DICTA EXPRESSED ON THE BENCH. 99 taken in connection witli tlie case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may seem to illus- trate it, are considered in their relations to the case decided, but their possible bearing^ on all other cases is seldom completely investigated."]- When a proposition is laid down generally, and is meant to be a general proposition applicable to a variety of circumstances, it is important nevertheless to bear in mind, that though as a general proposition it may be right, yet there may be circumstances, which may constitute a case, in which the rule may not be capable of being applied.^ A dictum, as above, it has been observed, is author- ity ; a material, that is, which a judge is bound to, in some degree, regard, in constructing a judgment which he gives. In this work it may, according to circum- stances, aid or impede him. And in either case the part devolves on him to measure the just value of it. For this purpose, a fit matter of inquiry may be, — whether the dictum or opinion was, on the point in judgment,^ in other words, on the point then in ques- tion, or only an opinion declared incidentally in the argument of the case,* or on the point argued before the court, or on which the court pronounced judg- ment : * or was a gratis dictum, without grounds, either ' 2 Enss. 333. = 1 Stra. 37. " 5 Maule and S. 185; 2 Ves. Jun- * 3 Barn, and Aid. 122. 473; 3 Vea. 630. Digitized by Microsoft® 100 OF DICTA EXPRESSED ON THE BENCH. from reason, or former authorities, to support it;^ or was an obiter saying only ; ^ or was otlierwise extra- judicial; ^ or is "a mere dictum^ -which, has never been followed up ;" * or was an opinion at nisi prius only ; ^ or is a dictwrn consonant to known practice ; * or must be taken to refer to the particular case then under dis- cussion, and ought n^/£9vbip extended further;^ or is a proposition csS^^^Mchy the case in which it was laid down ; ® or isw^^cMne found in another report of the same case, ^Jwra^ that doctrine occurs;® or is a doctrine allirdte^^ f^^troduced in any subsequent case, to which yw^T^Lapjply ; " or is an opinion, the contrary to wm^S'^Qas been expressly adjudged in more* modern tini^" or is a proposition supported by the authority, which the judge quoted for it.^^ And further, it may be mentioned, that, in consid- ering what weight a dictum may be entitled to, it may be material, — to view it in connection with the judi- cial character of the judge by whom it was niade;^^ also to consider whether the judge who delivered it, has ever expressed an opinion tending a contrary way ; ^* and, moreover, in many instances to pause on the accuracy of the reporter.^® On the latter point, it is observable that "Willes, C. J., has said of obiter dicta, ' 1 Stra. 39. ' « 5 Taunt. 153, 159. ' 4 Burr. 2068 ; 5 Barn, and Cr. • 5 Taunt, lil. 556; 2 Younge and J. 3T9 ; 1 Ves. Jun. " 1 Taunt. 671 ; 1 Younge and J. 12, 13 ; 1 Russ. 48. 399! = 5 Barn, and Cr. 5Y6 ; 3 Russ. 71, " 2 East, 17; 1 Younge and J. 399. 74, 77. " 3 Barn, and Adol. 673 ; 3 Russ. * 1 Turn, and R. 257. 88. • 1 H. Bl. 53—63. " 6 Maule and S. 185 ; 5 Barn, and « 1 W. Bl. 101. Cr. 556, 576; 7 Taunt. 670, 671, 674; ' 5 Durn. and E. 7; 3 East, 123, 3 Ves. 630; 1 Meriv. 643. 124; 1 Barn, and AdoL 586; 2 Barn. " 3 Russ. 78; 3 Ves. 630. and Adol. 124 ; 4 Barn, and Adol. 76 ; "6 Taunt. 747 ; 3 Ves. 630 ; 19 Vea. 6 Taunt. 747 ; 7 Bing. 448 ; 9 Bing. 857, 358, 365 ; 3 Russ. 71. 168. Digitized by Microsoft® OF DICTA EXPEESSED ON THE BENCH. 101 that, in many cases, they were nunquam dicta, but barely the words of the reporters; "for," he adds, "upon examination I have found many of the sayings ascribed to that great man. Lord Chief Justice Holt, were never said by him." ^ To the same inaccuracy Lord Kenyon also bears this testimony, — " I am sat- isfied that some of the propositions, which are stated in the books, could not havd come from the judges to whom they are imputed. *A.s, for example, when Lord Holt is stated to have «aid, that if one should advise another to charge a person with a bastard, (by which it must be understood that the charge was ill- founded,) it would not be indictable. I do not believe that he said so ; for it must be remembered, that such a charge is made upon path, and he could never have said, that to suborn a witness to commit peijury was no offence, although the perjury was not alleged to have been committed." ^ A general practical observation relative to the value of dicta, is, — " "We must consider that the dicta of judges, stated by reporters upon collateral points^ not in judgment before them, are always to be taken with great allowance." ^ And it is Lord Mansfield's remark, — "It is impossible for any man to take down, in a perfect and correct manner, every ohUer saying that may happen to fall from a judge, in a long or complicated delivery of his opinion and the reasons of it."* ' 1 Vea. Jua 13. material; and, being under the painful 2 East, \1. necessity of stating an opinion, contra- ' By Sir R. P. Arden, 2 Ves. Jun. dieting the passage in Atkyns, I must ■f^S- observe that it is most important, that * 4 Burr. 2068. On the impor- dicta, not necessary to the decision, tance, howeyer, of the correctness here should be reported with the strictest mentioned. Lord Eldon has made this accuracy possible." 19 Ves. 365. observation ; — " The case in Atkyns is Digitized by Microsoft® 102 OF DICTA EXPRESSED OK THE BENCH. And a universal practical guide to set a just value on dicta is, to bear in mind that particular circum- stances may augment or lessen their value. A circumstance, that may augment the value of a dictum,, may be : — 1. That it is "a deliberate and well-considered opinion." ^ 2. That it is consonant to known practice : " I give credit to the dictum of Judge Powys in Viner, not on the authority of the reporter, but because it is con- sonant to the 'known practice of Westminster Hall in other cases." ^ 3. That it " is not a mere dictum, it is a part of the argument ; it is a main part of the argument." ^ 4. That as authority it has been cited on the bench : " I must confess, that I never before heard that dictum cited as an authority; and the only claim, which it has, in my opinion, to that distinction, is the allusion to it by Mr. Justice Holroyd." ^ 5. That it is an ancient dictum, which has in several cases been cited as authority, and no case has deter- mined it not to be law : " I recur to the doctrine in Freeman. . . I am ready to admit that I do not know any case deciding that proposition so largely as it is there stated. ... If, however, no decision has gone to the extent of the doctrine there stated, it may be also safely affirmed, that no case has deter- mined it not to be law ; and it has been cited as authority in almost every case of a charity, that has since occurred. . . . How far that dictum in Free- and CI. 378. And see 2 Crompt. aad ' By Hullock, B., 1 Younge and I M. IIT. sfici ' 3 Bligh's New Rep. lOT; 1 Dow » 5 Taunt. 159. ". CI. 378. And see 2 Crompt. and IIT. ' By Lord Mansfield, 1 W. Bl. 101. Digitized by Microsoft® OF DICTA EXPRESSED ON THE BENCH. 103 man, from its autiquity of considerable authority, is to be supported, should this [the particular] case be taken to the House of Lords, is another question ; but much consideration will be required, before we can come to a conclusion against it at this day." ^ [The majority of tlie court in Grarrett v. Moule held that " The view it ^ suggests is, we think, in accordance with the justice ^of the case, and it is not, so far as we can find, opposed to any direct decision , on the point."] 6. That it is the dictum of a judge of great judicial character,^ " That [an opinion of Mr. Justice Heath] is certainly entitled to great weight, as being the opin- ion of a very able judge;"* "I thought so much respect due to the dicta imputed to Lord Hardwicke, as to pause upon the decision of a point, with regard to which he seemed to entertain an opinion different from that -with which I was impressed."^ [Now, though Lord EUenborough's view is only a dictum, it is valuable, because we happen to know from other cases and from briefs and opinions in those cases which we have seen and read, that he had, in the course of his practice at the bar, been several times en- _ gaged in some of the most noted of this class of cases.® The dictum seems to have been adopted in the American courts without question, as it agreed with the principles of the common law.'' Contrast with this the dictum in Harvey v. Thomas, 10 Watts, 63, that there existed in the Constitution, no disaffirmance of the power of the Legislature to take the property ' By Lord Eldon, 19 Vea. 487, 488. * By Littledale, J., 6 Barn, and Cr. " The dictum in Wolveridge v. 556. .^teward, 1 C. and M. 644. ' By Sir "W. Grant, 1 MeriT. 64a = 5 Barn, and Cr. 576 ; 7 Taunt. ' See 5 Law Rep. 693, C. P. 1670, 671, 674 ; 3 Ves. 630. ' Id. 695. Digitized by Microsoft® 104 OF DICTA EXPKESSED OS THE BENCH. of an mdi\idua\ for private use, witli or without com- pensation, which never found any sanction, and the same judge elsewhere expressed a contrary opinion.^] A circumstance, that may lessen the value of a dictum, may be : 1. That it is void of principle.^ 2. That it is extra-judicial : * "I observe that this was not the point, then in question, but only an opinion of Hobart's, declared incidentally in the argu- ment of the case, and, therefore, ought to have the less weight :"* " The point was not in judgment before Lord Holt, and, therefore, the opinion then delivered by him, although entitled to great respect, has not the weight that would belong to a judicial decision of that very learned judge :"^ " The opinions of jiidges,. given upon points not before them, have certainly not so much weight, as when the points are before them :" ^ " The opinion given by Mr. Justice Heath on this subject, in the case of Bush v. Steinman, was extra-judicial. It has the weight properly belonging to the opinion of a very learned judge, but it could not be revised, and has not the authority of a judg- ment." ^ [Dicta upon points not in controversy have little weight.] « 3. That is a mere dictum, which has never been followed up.* 4. That is an ohiter dictum, only ; " that the worda ' Korman i. Heist, 5 W. and S. ° By Sir E. P. Arden, 3 Ves. 630. 171. ' ' By Abbott, C. J., 5 Barn, and ^ 11 Ves. 629, 530. Cr. 576. = B Barn, and Aid. 122 ; 3 Rubs. = The Louisa Bertha, 14 Jur. 71, 74; I Turn, and K. 257., And see 1007; 1 Eng. Law and Eq. 666, 669;, 2 Crompt. and M. 117. Carroll v. Carroll, 16 How. TJ. S. 275. * By Lord Chancellor Cowper, 1 ' 1 Turn, and R. 267. Stra. 37. " 4 Burr. 2,068 ; 6 Barn, and Cn. ' By Lord EUenborongh, 5 Maule 566 ; 2 Younge and J. 379. andS. 186. Digitized by Microsoft® OF DICTA EXPRESSED ON THE BEKOH. 106 " are nothing more than an obiter dictum, uttered upon a point totally different from that, which the court had then to decide, and by a judge, who, in the dis- cussion in which he uttered them, was in a minority." ^ 5. That it is an opinion at nisiprius only : ^ " T];ie authority in our law, upon which the right to glean is supported, is a dictum of Sir Matthew Hale in the Trials per Pais ; but though I entertain the highest respect for the authority and character of that great judge, yet it would be doing injustice to his mem- ory, to take every hasty expression of his at nisi prius, as a serious and deliberate opinion :" ^ " The passage cited from the Trials per Pais contains a dictum, but not a judicial opinion, of Sir Matthew Hale. Every one who hears me must acknowledge the impropriety of construing all the conversation, which passes between a judge and the counsel at nisi prius, as legal decision." * 6. That no such doctrine is to be found in another report of the same case by a learned judge, who joined in the judgment in that case : " It is to be observed, that no such doctrine is to be found in the report of the same case by Mr. Justice Blackstone, who joined in the judgment." 7. That the case did not call for the proposition so generally expressed : " In the case of F. v. A., De Grey, C. J., indeed says, ' When money is paid by one man to another on a mistake either of fact, or of law, or by deceit, this action (of money had and received) .will certainly lie.' ISTow, the case did not call for this • 1 Russ. 48. 4 By Wilson, J., 1 H. Bl. 63. ' 1 H. Bl. 53, 63. <■ By Qibbs, C. J., 5 Taunt. HI. ' By Lord Loughborough, 1 H. Bl. 53. Digitized by Microsoft® 106 OF DICTA EXPRESSED ON XHE BEl^OH. proposition so generally expressed ; and I do think that doctrine, laid down so very widely and generally, where it is no.t called for by the circumstances of the ease, is but little to be attended to ; at least it is not entitled to the same weight in a case, where the at- tention of the court is not called to a distinction, as it is in a case where it is called to the distinction." ^ 8. That the doctrine is not referred to in a judg- ment, in any subsequent case, to which it would apply : " It is very singular, that in no subsequent case is that doctrine ever alluded to, or introduced, though many cases must have occurred, to which it would apply. Possibly the courts have not thought it necessary far- ther to consider a mere dictum; but I can find no judgment of any court, in which the court has referred to those dicta. In one, and only in one case, do the counsel in argument allude to them, but the court does not notice the argument. In such circumstances, therefore, we are to look to subsequent decisions, and see how far such dicta, though coming from so high an authority, have been recognized. On the other hand, we find in previous, as well as in latter decisions, many things which have an aspect the other way." ^ 9. That the proposition is not supported by the authority, which the judge quoted for it.^ 10. That in the decision of the case, in which the dictum occurs, the judge who expressed it was in a minority : * Lord Lyndhurst, estimating such a dictum, says, " Reference is made to the dictum of Lord Holt, in G. V. A. Whether that dictum be or be not ac- * curately reported, I will not undertake to say ; but in ' By Gibha, J., S Taunt. 153. = 3 Bam. and Adol. 673 ; 3 Russ. "By Gibbs, 0. J., 1 Taunt. 671. 88. See also 1 Younare and J. 399. * 1 Russ. 48. Digitized by Microsoft® OF DICTA EXPEESSED ON THE BENCH. 107 tLe judgment, in wliicli it occurs, Lord Holt differed from the rest of the court, and the decision was con- trary to his opinion ." ^ 11. That the case, in which the dictum is found, is inaccurately reported : Lord Lyndhurst, citing a case on account of a dictum^ which occurs in the report of the judgment, remarked, " In the first place, this is a mere dictum, and was not essential to the decision of the case. It is also to be observed, that the case is most inaccurately reported. As stated in Atkyns, it is uiiintelligible ; and it is only by attending to the correction of it in a note by Mr. Cox,* that we are able to ascertain what the true facts were. I mention this circumstance for the purpose of showing, that in Gr. v. K., not much reliance can be placed on the accuracy of the reporter." ^ 12. That the same judge has expressed an opinion tending a contrary way : * " Here is the opinion of a very learned judge [Lord Hardwicke] not essential to the decision of the particular case, conformable to an opinion said to have been expressed by him in another case, where also it was not essential to the decision. But, in considering what weight these dicta are entitled to, it is material to consider, whether the same judge has ever expressed an opinion tending a contrary way. . . . The opinion expressed by Lord Hard- vdcke [in B. v. D.] is at variance with the other dicta I have referred to ; and, when we are considering to what degree of respect the language, so attributed to that learned judge, is entitled, we are justified in set- ting the one dictum against the other." ® • 3 Euas. 87, 88. * 3 Ves. 630. "" See 1 P.W. ed. Cox, 458, n. ' By Lord Lyndhurst, 3 Russ. 11- " 3 Russ. 11. 83. Digitized by Microsoft® 108 OF DICTA EXPRESSED ON THE BENCH. It remains in conclusion to state, naming an ob- vious place of a dicPum in the line of authority, that, generally speaking, it must, as a less authority, give way to a case decided.^ Lord Mansfield, speaking of a dictum in 10 Modern Eeports, says, — "The obiter saying in 10 Modern (if it was a book of better au- thority than it is) would signify nothing, when the determinations are the other way."^ And the same learned Lord, with reference to a dictum of Chief Jus- tice Holt, observed, — " That is an oUter saying only, and not a resolution or determination of the couft, or a direct solemn opinion of the great judge, from whom it dropped. . . . This mere obiter opinion ought not to weigh against the settled direct authority of the cases, which have been deliberately and upon argu- ment determined the other way."^ And Lord Ken- yon, adverting to an opinion imputed also to Chief Justice Holt, but which opinion he did not believe came from him, added, — "But if he had delivered such an opinion, it is a sufficient answer, that the con- trary has been expressly adjudged in more modern times by all the judges, in the case before Mr. Baron Adams at Shrewsbury." * A last observation that may be made is, that a decision may be right, notwithstanding some dwta in it which cannot be supported. Accordingly Lord EUenborough once had occasion to say, — " I think the case of M. v. C. was rightly decided, though perhaps there may be some expressions found in it, which go further than the case required, or the law warranted." * ' 1 Taunt. 674 ; 1 Younge and J. = 4 Burr. 2068. 399 ; 1 Turn, and R. 257 ; 3 Russ. 85, ' 2 East, Vl. '■ 2 Maule and S. 50. ' 1 Burr. 153. Digitized by Microsoft® OF DICTA EXPKBSSED ON THE BEKCH. 109 A similar remark has fallen from Mr. Justice Cham- bre,— "The case of E. v. B., is, in the main, right, though some of the points asserted in that case may not be tenable."^ [Another instance is the case of Keller v. Phillips.^ There the question was upon the liability of the husband for necessaries supplied to his wife. ' In deciding the case, the judge says, the hus- band is bound to provide for his wife and family. The question of providing for the family was not Tinder consideration. It is well settled that there is no analogy between the liability of a husband to sup- port his wife and the liability of a father to support his children. Except by statute in certain cases, a father is not civily under any legal obligation to main- tain his child.* This error does not detract from the authority of the case upon the liability of the husband for necessaries supplied to: his wife. Again, it may not detract from the authority of the decision in Bis- sell V. Balcom,* that the opinion refers to Elmore v. Stone, 1 Taunt. 458, as an evidence of the law, and without noticing the fact that that case had been re- peatedly overruled.^] ' 4 Taunt. 626. < 39 N. T. 281. ' 39 K Y. 354. ' See Shindler v. Houston, 1 N. Y. = Bazeley«.Forder,3LawRep.564; 268; Horn v. Palmer, 3 B. and Aid 1 H. Bl. 61; 7 Taunt. 527; 1 Eden, 212 ; 1 "W. Bl. 150 ; 1 Bro. C. C. 165. " 3 Barn, and Cr. 131. " 2 Bos. and P. 109, 125 ; 8 East, 484, 485 ; 6 Maule and S. 342 ; 1 Eden, 230; 1 W. Bl. 165, 166; 2 Eden, 184; Ambl. 430. Digitized by Microsoft® 112 OF CEETAIN ARGUMENTS THAT ARE in saying : " In doubtful cases, arguments from incon- venience are of great weight."^ "The argument ah inccnwenienti, undoubtedly, is of weigbt, especially in a new case." ^ " The argument of inconvenience is of fair application in a new and doubtful case." * "Argu- ments of inconvenience are sometimes of great value upon the question of intention. If there be in any deed or instrument equivocal expressions, and great inconvenience must necessarily follow from one con- struction, it is strong to show that such construction is not according to the true intention of the grantor. But where there is no equivocal expression in the instrument, and the words used admit only of one meaning, arguments of inconvenience prove only want of foresight in the grantor ; but because he wanted foresight, courts of justice cannot make a new instru- ment for him ; they must act upon the instrument as it is made." * " In questions, the decision of which depends on the principles of' the common law, and which are attended with difficulty and doubt, I have been used to look forward to the consequences which, must result from the decision. If great inconveniences will result from one decision, which may be avoided by a different course, I think that the court ought, before it decides, to be satisfied that the law is clear, and that it imperatively calls for a decision which will produce these inconveniences ; to this extent only do I suffer the idea of inconvenience to affect my mind." ® " If there be any doubts what is the law, judges solve such doubts by considering what will be the good or bad effects of their decision." * " Whatever may be ' By Heath, J., 1 H. BL, 61. * By Sir J. Leach, 8 Madd. 540. , ' By Lord Hardwicke, 1 Dick. 218 ; " By Burrough, J., 1 Taunt. 496. 3 Atk. 767. " By Best, C. J., 8 Bing. 690. = By Dallas, J., 1 Taunt. 527. Digitized by Microsoft® GROUNDS OF JUDGMENTS. 113 the effect of the prevailing fashions of the times, I do not think that the argument of inconvenience, arising out of those fashions, can at any time he relied upon against a current of decisions." ^ "As to inconveniences, if the law is clear, they afford no argument of weight with the judge. The legislature ^ only can remedy them. They are properly considered only in a case where the court entertains doubts." ® " Judges must judge according as the law is, not as it ought to be. But then the premises must be clear out of the estab- lished law, and the conclusion well deduced, before great inconveniences be admitted for law. But if inconveniences necessarily follow out of the law, only the Parliament can cure them." * The learned chief justice, who delivered the last-mentioned opinion, says, to the same effect in another case, what Chief Baron Parker pronounces to be the true rule,"* that, " Where the law is known and clear, though it be unequitable and inconvenient, the judges must de- termine as the law is, without regarding the unequitableness or inconveniency. Those defects, if they happen in the law, can only be remedied by Parliament ; therefore, we find many statutes repealed, and laws abrogated by Parliament, as inconvenient, which, before such repeal or abrogation, were in the ■courts of law to be strictly observed. But, where the law is doubtful, and not clear, the judges ought to inter- pret the law to be as is most consonant to equity, and least inconvenient. And, for this reason, Littleton, in many of his cases, resolves the law not to be that way which is inconvenient ; which Sir Edward Coke, in his ' By Lord Eldon, 2 Boa. and P. ' By Lord Northington, 2 Eden, 109. 184; Ambl. 430. ' See also 2 Bos. and P. 109, 125, * By Vaughan, C. J., Vaugh. 285, and4Vea.332. » 1 Atk. 43 8 Digitized by Microsoft® 114 OP CEETAIN AB&TJMENTS THAT ABE comment upon him, often observes, and cites tlie places." ^ The weight, and even the existence,^ of an incon- venience is sometimes a matter of dispute. And often an inconTenience on one side of a question is balanced by an inconvenience on the other.* For instance, when, on the construction of a marriage settlement, the question is, whether a daughter's portion is pay- able in the lifetime of her father ; the child may suflfer an inconvenience in its obligation to wait for it until that parent's death ; and an inconvenience may accrue to the father by his child's independence at the age of twenty-one, or earlier marriage. In the mind of one person, the former of these inconveniences may outweigh the latter of them ; * while, in another person's opinion, the latter may outweigh the former.®: Sir E. Coke advances so far as to say : Nihil ^pwd est inconveniens est licitum.^ This doctrine certainly needs some qualification; and a qualification it, perhaps, receives from that learned writer, when he says : " Quod est inconveniens non permissvmi est in lege. An argument ab inconvenienti ^ is forcible in law."^ ^^ Ai^gwnentum ab inconvenienti est validmn in lege, quia lex non permittit aliquod inconveniens.^^ ^ " An argument ah inconvenienti is forcible in law, and judges are to judge of inconveniences as of things unlawful." * " Here note three things : first, that ' Vangh. Z1. 6 Reresby v. Newland, 2 P. W. 98 ; " 7 Taunt. 527, 628. Stevens v. Dethick, 3 Atk. 39—1 P.W. = 1 Eden, 210, 211, 212; 1 W. Bl. •'?09; 2 Atk. 356; 1 WestCas.T. Hardw., 149, 150 ; 3 Madd. 639. 435 ; e Ves. 3'76-3'?9. « Greaves v. Mattison, T. Jones, « Co. Litt, 66 a, 97, 178 a, 268 b. 201, cited 1 Salk. 160, and Cas. T. Talb. ' Co. Litt. 178 a. 33 ; Smith v. Evans, AmbL 633—6 Ves. ' Co. Litt. 26 8 b. S76-879. » Co. Litt. 279 a." Digitized by Microsoft® GKOUNDS OF JUDGMENTS. 115 wLatsoever is against the rule of law is inconvenient ; secondly, that an argument db inconvenienti is strong to prove it is against law; thirdly, that new inven- tions (though of a learned judge in his own profes- sion) are full of inconvenience, periculosum est res novas et inusitatas inducere; eventus varios res nova semper Tiabetr'^ Expressions that tend to show his only meaning to be, that, against the introducing or establishing of a particular doctrine, inconvenience is a forcible argument. The argument of inconvenience is, under many circumstancesj allowed to avail to this extent, — that the law will sooner suffer a private mischief, than a public inconvenience.^ Lex citius tolerare vult priva- tum 'damnum quam puTMcum malum? " It is better^ saith the law, to suifer a mischief that is peculiar to one, than an inconvenience that may prejudice many." * " It is hblden for an inconvenience, that any of the maxims of the law should be broken, though a private man suffer loss ; for that, by the infringing of a maxim, not only a general prejudice to many, but, in the end, a public uncertainty and confusion to all, would follow." « A ground of decision in a modern case was, that, "according to the rule laid down by Littleton and Lord Coke, it is bettfer to submit to a particular incon- venience, than introduce a general mischief." ® ["I can conceive," says Daly, first judge, "of cases where the operation of the rule would be inequitable and unjust. But it is not our province to legislate, ' Co. Litt. 879 a. « Co. Litt. 97 b. » Litt. § 231; Hob. 224; Caa. T. ' Co. Litt. 162 b. Talb. 116. • Emerson v. Lashley, 2 H. Bl. 252. ' Co. Litt. 182 b. Digitized by Microsoft® 116 OF CERTAIN ARGUMENTS THAT ARE but to declare the law as we find it." ^ " It is better lie (the defendant) should be quite undone, than that the law should be changed for him."^ "The court cannot depart from a general rule of practice in order to dp substantial justice in a particular case." * " The mere fact that a rule is inconvenient, is no argument against its justice or propriety, where it is necessary in order to decide according to the very right of the parties." * And by Bronson, Chief Justice : " Courts of justice should take care that they are not misled by the hardship of a particular case, or by the passion or prejudice which maybe excited against a particular individual, to make a precedent which would run counter to well established principles. It should never be forgotten — that a wrong-doer, however great the wrong may be, has not forfeited . all his rights — and although the individual may be entitled to no sympathy, care should be taken that the blow which destroys him does not inflict a wound upon justice herself." ° Lord Tenderden is reported to have said, "Hard cases make bad law." But "the argument ai inconvenienti is never of very great weight ; of none against the positive injunctions of a statute." "] 2. Analogy is an argument, or guide, in forming a legal judgment,'' and very commonly is a ground of ' Vermilya v. Austin, E. D. Smith, '' Supervisors of Onondaga v. 203. Briggs, 2 Denio, 32. ^ Beaulien v. Fingham, 2 Hen. IV, " Hogeboom, J,, The People v. Su- fo. 18, cited Reedie v. London and 'S. per. of Ulster, 32 Barb. 477; see Doe "W. R. R. Co., 4 Ex. CW. H. & 6.) 251. ,v. Burford, 4 Maule and S. 12. = Freeman v. Tranch, 21 Law J. R. '7 Barn, and Cr. 168 ; 3 Biug. 265 ; N. s. C. P. 214 ; 16 Jur. 1141 ; 14 Eng. 8 Bing. 557, 563 ; 3 Atk. 313 ; 1 Eden, L. The present generation of distinguished lawyers, as well as that which has just passed away, have given ample proofs of their familiarity with the writings of Lord Coke; and our numerous volumes of reports daily illustrate, that with trivial exceptions, what is the law of real property at Westminster Hall, is equally so in the various tribunals throughout our extensive country,"] Bacon's Elements of the Common Laws of Eng- land ;^ " a little book, but that little book the work of a very great man." ^ Hale's History of the Pleas of the Crown : ^ His^ ' 1 West's Gas. T. Hardw. 158, 169 ; =1 Stra. 701 ; Willes, 50 ; 1 Brod.. 1 Atk. 461, 462. and B. 570, 574, See Wilmot's Notes;. ^ By Lord Hardwicke, 1 West's 99, 100. Cas. T. Hardw. 158. Digitized by Microsoft® TEXT ANB OTHER BOOKS. 157 Treatises De Jure Maris ,*^ De Portihus Maris? [Hale's History of the Pleas of the Crown was, Bur- net informs us, commenced in the reign of Charles I. After the king was beheaded, the author hid his manuscript behind the wainscoting of his study. In 1680 the House of Commons passed an order to have the manuscript printed, but for some reason the order was not carried into effect, and the work remained in manuscript until printed under the editorship of Emlyn. Dallas, C. J., referring to this work, is re- ported to have said •? " With respect to Lord Hale, it is needless to remind those whom I am now address- ing, of the great character for learning and legal knowledge of that person of whom it was said, that what was not known by him was>. not known by any other person, who preceded or followed him, and that what he knew he knew better than any other person who preceded or followed him."] Foster's Discourses upon the Crown LaA\.* Blackstone's Commentaries ; ^ an opinion in which valuable work, Grose, J., quotes as "deserving of great attention." ^ It is important, however, to state, that in a case, where, in the Court of Chancery, in Ire- land, the same work was cited by counsel, Lord Eedes- dale made the observation, — "I am always sorry to hear Mr. Justice Blackstone's Commentaries cited as an authority: he would have been sorry himself to hear the book so cited : he did not consider it such.""^ ' 4 Barn, and Cr. 505. This Trea- * Cowp. 1; 3 East, 582, 583. tise is printed in "A Collection of ° 10 Bing. 147, 151, 48Y; 3 Price, Tracts," edited by Mr. Hargrave. 391; 8 Price, 62, 63; Dan. 292; 2 " 15 East, 304 ; 5 Barn, and Aid. Crompt. and J. 308. 285. This Treatise is also in the same ° 4 Durn. and E. 311. The opinion Collection of Tracts. there referred to is in 1 Bl. Com. 373. ^ 1 Brod. and Bing. 5Y0. ' 1 Sch. and Lef. 327. Digitized by Microsoft® 158 TEXT AND OTHEE BOOKS. [Blackstone is not authority-' upon Constitutional law,^ contra? His knowledge of English history wa& rather superficial.* He was a feeble reasoner and confused thinker.^ His opinions upon criminal law are to be regarded as the offspring of an eager, rather than a well-informed mind.* His Commentaries " con- tain a thousand sophistries dangerous to the princi- ples which every citizen of our free republic ought,, and every professor of our laws, is sworn, to main- tain;"'] Doddridge's Treatise of the Mobility of the Kealm ; " a great authority " on the subject of grants of peer- age ; ^ " a high authority on these matters." ^ With the above authorities may also be ranged the work of a Lord Chancellor of Ireland — Mitford's (Lord Kedesdale's) Treatise on the Pleadings in Chan- cery.^" [Characterized as " a wonderful effort." "] Besides the books mentioned, the following works appear also to bear the impress of authority : — The Register f^ which is " a most ancient book of the common law; and it is two-fold, viz., registrum hrevium, originalium, and registrum hreviwm judi- cialium. It is a French word, and signifieth a memo- morial of writs. Sometimes the register of original writs is called registrum cancellariw ; because all original writs do issue out of the chancery, as extra ' 1 Sch. and Lef. 327 ; Peck's Trial, » By Lord Brougham, 2 Dow and 303 ; Ritso's Law Education, 33. CI. 204. ' Fox, 6 Cobbett's Pari. Debates, ' By Lord Wynford, 2 Dow and 314. CI. 207. ' Story's Inaugural Address, 59 ; 4 -° .2 Younge and J. 41 ; 1 Sim. 369- Dum. and E. 311. 371; andsee IM'Clel. andY. 319,320.. * Hallam's Middle Ages, ch. yiii. ; " 9 Ves. 54. ' Mackintosh's Ethical Philos. 187. '" Litt. §. 9, 101, 234 ; Plowd. 228 " L'd Eldon, 1 Jurist, 459 n. a; 1 Stra. 158; 2 Maule and S. 436, ' Sampson on Cx)des and Com. 437. Law, 6. Digitized by Microsoft® TEXT AND OTHER BOOKS. 159 officinam justitice ;" ^ " There is a register of original writs, and a register of judicial writs ; but when it is spoken generally of the register, it is meant of the register original." ^ The register is " of great authority in law ;" ^ is a book " of very high authority," * " of the greatest authority." ^ Doctrina Placitandi ; ® "a book which has always been admitted to be of great authority in pleading, and was often quoted by Lord Chief Justice Willes." "^ Briton.® Doctor and Student, ^ [is one of the most esteemed of the ancient law books, and has been an authority for about three centuries, having been constantly cited from the time of Chief Justice Brooke to the present period."] Ancient Readings •}'^ " By the authority of Little- ton, ancient readings may be cited for proof of the law ; but new readings have not that honor, for that they are so obscure and dark." ^^ Perkins' Profitable Book ; ^^ " which is a very good authority in point of law." " Sheppard's Touchstone of Common Assurances ; ^^ on quoting which, "Willes, Chief Justice, observed, — " I rely much upon Sheppard's Touchstone, which is a ' Co. Litt. 159 a. And see iUd, 16 Readings as authority. They were no b, and "73 b. more than lectures." By Burrough, " Co. Lltt. 16 b. J., 3 Brod. and B. 226 ; 6 Moore, 553, = Co. Litt. 73 b. 564. * By Eyre, C. J., 1 Bos. and P. 122. " 1 Co. Litt. 280 b. And see ibid, ' By WiUes, C. J., WiUes, 48. lib. « 1 Crompt. and J., 314. " 2 P. W. 714. See 1 W. Bl. 477, ' By Lawrence, J., 2 East, 340. 478. ' 3 Bos. and P. 382; 6 Bing. 140. " By Lord Mansfield, Cowp. 203. ° 2 Mod. 193 ; 2 Lord Raym. 915 ; " Willes, 684 ;4 Durn. and E. 312 ; 8 Price, 63-66: 8 Bing. 491. 11 East, 663; 2Barn. andCr. 206, 207; " Marvin's Legal Bibliography. McClel. 668. " Litt. §. 481. " I object to Brooke's Digitized by Microsoft® 160 TEXT AKD OTHER BOOKS. most excellent book"^ BuUer, J., mentions it as a work of Mr. Justice Dodderidge.^ And eminent coun- sel have, on citing it, spoken of it as a book, wMcL, "' tliougli fathered by Sheppard, who published it as his own, is understood to be of higher lineage, and has been with some probability attributed to Judge Dod- deridge, and well deserves to be considered as no mean authority." ^ And on another occasion, wten Mr. Pres- ton cited Sheppard's Touchstone, naming it " an excel- lent work," Sir John Leach upheld this character of it by subjoining, — " You say right : there is as much sound information in that work, as in any known to the profession."* West's Symboleography ; ^ " which has always been esteemed a book of authority." " Hawkins' Treatise of the Pleas of the Crown.'' Dallas, Chief Justice, referring to this book, and to Sir M. Hale's History of the Pleas of the Crown, on the subject of jurisdiction of justices of the peace, observes, — " If the authority of Lord Hale, and that of Mr. Ser- geant Hawkins, are to be treated lightly, we may be without any authority whatever. With respect to Lord Hale, it is needless to remind those, whom I am now addressing, of the general character for learning and legal knowledge of that person, of whom it was said, that what was not known by him was not known by any other person, who preceded or followed him ; and that, what he knew, he knew better than any other person, who preceded or followed him. With respect to Mr. Sergeant Hawkins, we know his author- ' 2 Wils. IS ; Willes, 684. « By Sir J. Mansfield, 2 Taunt. 85. " 4 Dum. and E. 639. ' 1 Barn, and Aid. 244 ; 1 Barn. ' 2 Bos. and P. New Rep. 13. and Cr. 274 ; 1 Brod. and B. 570, 573, * 4 Madd. 46. 574, 576, 597. ' 2 Barn, and Adol. 638. Digitized by Microsoft® TEXT AND OTHER BOOKS. 161 ity. These are books wMcli are in the hand and head of every lawyer, and constantly referred to on every occasion of this sort."^ [Havs^kins' Treatise was for- merly much esteemed, but later publications upon crown law have somewhat impaired its value as a practical work.^] Callis' Reading upon the Statute of Sewers : " one of the best performances on that subject, and which has always been admitted as good authority ; " ^ a tes- timony that is corroborated by Best, J., who says, — " I have often heard Lord Kenyon speak with great respect of that writer." ^ Gibson's Codex Juris JEcclesiastici Anglicani;^ the authority of which writer on the subject of advowsons " has always been considered as entitled to great re- spect :" ® " It has been often said of the author of this book, that he was a good common lawyer." ^ Mr. Justice Park, quoting Burn's Ecclesiastical Law, mentions the author. Dr. Burn, as one " who is now no more, and may be now considered perhaps as an au- thority, as much as Bishop Gibson, and was a very considerable man."^ [Blackstone, in his Commen- taries, mentions this book as one of the very few books on ecclesiastical law on which the reader can rely. Bum was also author of a law dictionary, a posthu- mous publication, and of the work known as Burn's Justice. The latter work was abridged and adapted to the law of Massachusetts when a colony.] Lord Hardwicke, relying on Clarke's Praxis Curioe ' 1 Brod. and B. SYO. "By Park, J., 8 Bing. 539. ' Marvin's Legal Bibliography. '.By Burrough, J., 3 Brol and B. ' By Buller, J., 2 Durn. and E. 365. 36. ♦ 5 Bam. and Aid. 282. ' 3 Bing. 259. And see 8 Bing ' 3 Brod. and B. 36 ; 3 Bing. 254, 546. 255; 8 Bing. 539, 540, 11 Digitized by Microsoft® 162 TEXT AND OTHER BOOKS. Admwalitatis Anglian, speaks of the writer, as "an author of Tindoulbted credit," and of the work, as " a book of very good authority," ■* With regard to abridgments and digests, some bear the three characters of, — 1. An original volume of re- ports; 2. A depository of cases elsewhere reported; and 3. An original publication of opinion or doctrine. As original publications of opinion or doctrine, (the only character which the present chapter properly em- braces,) some abridgments and digests undoubtedly are authority; namely, in the sense that they are sources ' of proof of the law, and accordingly may be cited for proof of the law. Works of this description are, — Brooke's Abridgment.^ Sir T. Clarke, relying on this learned writer's opinion, which is a conclusion that he introduces by the words ideo videtwrf observes, — " Though this is introduced by an ideo videtur^ in a modest manner, yet many of his opinions are so intro- duced, and have generally been thought of very great authority."^* Comyns' Digest ; " a book of very excellent author- ity." ° And Lord Kenyon, relying on an opinion there, and for which no authority was cited, has said, — :" Though no authority is referred to in support of it, yet the opinion alone of so able a lawyer is of great authority."^ And, speaking of another opinion of Comyns in the same work, Lord Kenyon on a different occasion says, — " He has not, indeed, cited any author- ity for this opinion, but his opinion alone is of great authority ; since he was considered by his cotempora- '1 Atk. 296; 1 West's Cas. T. "lAV". Bl. 140; 1 Eden, 199. Hardw. 27. ° 1 Maule and S. 363. And see 1 ^ See 3 Bing. 396. Barn, and Aid. 713, and 8 Price, 61. " Bro. Abr. tit. Feof. al Uses, pi 34. ° 3 Durn. and E. 631. Digitized by Microsoft® TEXT AND OTHER BOOKS. 163 ries as the most able lawyer in Westminster Hall."^ And, to the same effect, Best, Chief Justice, citing Comyns' opinion in his Digest, observes, — "This he lays down on his own authority, without referring to any case ; and I am warranted in saying, we cannot have a better authority than that learned writer." ^ Many works there are, which, perhaps, are not im- pressed with the character, that is designated by the term authority,^ but which nevertheless are, with much respect, regarded by the bench. Books of this kind are : — Dalton's Country Justice;* a book "published in the reign of James I, and which, though not a judicial authority, is of considerable weight." ^ Degge's Parson's Counsellor; a text book, which Eichards, Chief Baron, referred to, as he had " always understood it to be a book of some value as an au- thority." ' Lilly's Practical Register : " It might," says Lord Redesdale, " be too much to quote this book as an authority in matter of law ; but, in a matter of practice, I think it is a sort of authority.""^ Marius' Advice concerning Bills of Exchange ;^ a book, which, upon questions on those bills, " has al- ways been treated with considerable respect, though not the production of a lawyer: it was written in early times by a person conversant with the custom of merchants respecting bills of exchange : the rules laid down by him have been since received by the mercan- ' 3 Burn, and E. 64. ' By Richardson, J., 1 Brod. and = 5 Bing. 387, 388. B. 695. " 1 Brod. and B. 595 ; 4 Bing. 614 ; "8 Price, 60 ; Dan. 291. 8 Barn, and Cr. 518; 3 Dow, 15; 2 '1 Sch. and Lef. 79. Atk. 22 ; 1 Sch. and Lef. 79. " 6 East, 8, 11. ^ 3. Bos. and P. 254; 1 Brod. and B. 579. Digitized by Microsoft® 104: TEXT AND OTHER BOOKS. tile world ; and his book lias been frequently referred to by courts of justice, and by the most able authors treating upon commercial subjects." ^ Nolan's Treatise of the Laws for the Relief and Settlement of the Poor ; ^ " a text book, from which the profession derive great assistance." ^ The Office of Executors ; " which is a book of good authority."* Phillipps' Treatise on the Law of Evidence ; ^ which book Best, C. J., citing on a point of evidence, says— " which I refer to, not as authority, but as proof of the understanding of Westminster Hall on the sub- ject." « The Practical Register in Chancery :^ it " is not a book of authority, but it is better collected than most of the kind :" ^ " it is a good book, and seldom men- tions any thing without authority." ' Preston's Treatise on Conveyancing ; a passage in which work Bayley, J., quoting, says — "I do not cite this book as an authority, though from the learning, research, experience, and discrimination of the author, it is extra-judicially entitled to great weight." " Sugden's Treatise of Powers ; " a very intelligent and useful publication ; ^^ " a book of great authority, and to which the professional public are much in- debted."!^ lies Termes de la Ley ; " which is a very excellent book. ms » By Lord Kenyon, 6 Durn. and E. ' By Lord Hardwicke, 2 Atk. 22. 212. "By Lord Thurlow, 2 Bro. 0. C. ' 4 Barn, and Cr. 959. 146. = By Bayley, J., 6 Barn, and Cr.TSe. '» 8 Barn, and Cr. 518. * By Lord Hardwicke, 9 Mod. 477. " By Lord Manners, 2 Ball and B. ' 1 Barn, and Aid. 21. 30. » 4 Bing. 614. " By Park, J., 2 Brod. and B. 535. ■« 2 Sim. and St. 243 ; 2 Sim. 86. " By Lord Kenyon, 1 East, 459. Digitized by Microsoft® TEXT AND OTHER BOOKS. 165 Tidd's Practice ; ^ " a book of practice of very great authority." ^ Williams' Notes to Saunders' Reports ; ^ which notes Tindal, C. J., cites as a work, that " is now esteemed a text book of our law ;" * and Vaughan, B,, relying on a statement in them, says — " This is the view taken by the late Mr. Serjeant Williams, than whom a sounder lawyer, or more accurate special pleader, has rarely done honor to his profession."® And still stronger praise of the same learned writer was expressed by Lord Eldon in the House of Lords, when his lordship observed — " Though one who had held no judicial situation, could not regularly be mentioned as an authority, yet he might say, that, to any one in a judicial situation, it would be sufficiently flattering to have it said of him, that he was as good a common lawyer as Mr. Serjeant Williams ; for no man ever lived, to whom the character of a great common law- yer more properly applied.® [The present state of the common law may now probably be best learned from " the notes of Patteson and Williams on Serjeant Wil- liams' notes on Saunders' reports."^ These reports have been described as "The bible of the law of special pleading."] Other law-works, which have experienced the honor of being quoted, or with approbation in some way noticed, by the bench — an honor, which, at the same time that it marks the merit of those works, also shows the habit of the courts to seek for, imbibe, and sanction, the information and instruction to be derived " 8 Barn, and Cr. 3 ; 2 Crompt. and " 9 Bing. 631. J. 316. ' 1 Crompt. and J. 9. ' By Vanghan, B., 2 Tounge and " 3 Dow, 15. J. 562. ■ ' Campbell's Lives of Chanc. ch. ix, ' 3 Bos. and P. 1*78 ; 2 Yonnge and note. J. 426. Digitized by Microsoft® 166 TEXT AKD OTHER BOOKS. from those sources, are — Amos and Ferard's Treatise on the Law of Fixtures;^ Beawes' Lex Meroatoria f Deacon's Law and Practice of Bankruptcy ; ^ Duke's Law of Charitable Uses;* Fearne's Essay on Con- tingent Eemainders and Executory Devises ; ^ Grodol- phins' Repertorium CaTionicum ; ® His Orphan's Leg- acy;'' Jacob's Law Grammar;^ Malynes' Lex Mer- catoria;^ Pigott's Treatise of Common Recoveries;" Preston's Essay on Abstracts of Title;" Starkie's Treatise of the Law of Evidence f' Swinburne's Treat- ise of Testaments ; ^^ Watkins' Essay on the Law of Descents." ^* [It would be tedious to attempt the enumeration of all the works which have been quoted, or noticed by the bench, we, therefore, do not add to the list of works mentioned by the author. [It seems to be understood on the bench, and at the bar of England, that a law-writer is not authority during his lifetime. ^^ No such idea prevails in the United States. [The attaching moi'e importance to a book from the fact of its author being a judge, either at the time of producing the book, or by subsequent elevation, admits of these defences : first, from the author being ' 1 Barn, and Adol. 395. " 10 Barn, and Cr. 200. M6Eaat, 39*7,398; 3 Maule and "1 Crompt. and J. 10; 4 Bing. S. 297; 12 Moore, 337. 614. = n Barn. andCr. Y06. '^ 2 H. Bl. 219 ; 1 West's Cas. T. " 3 Ves. 69. Hardw. 117, 118, 119, 360, 472, 473; " 3 Bos. and P. 656 ; 10 Barn, and 1 Atk. 601. Cr. 190, 200 ; 10 Bing. 148, 149, 151. " 2 H. Bl. 401 ; 3 Bos. and P. 657. » 8 Bing. 491. >5 jjgg ^_ jon_ ^ -q^^ q q ^i^g . g ' 1 West's Caa. T. Hardw. 117, 118 ; Cox's C. C. 1 ; 16 Jur. 746; 14 Eng. 1 Atk. 501. Law and Eq. R. 556 ; 1 Ben. and H. « 7 Tannt. 498, 499. Lead. Cas. 400; Reg. v. Drury, 3 Cox's " 16 East, 396, 398; 2 Barn, and C. C. 544;, 1st Rep. Eng. Com. Law Aid. 80. Com'rs, and 3 Bing. 259. " 2 Bos. and P. New Rep. 504. Digitized by Microsoft® TEXT AND OTHER BOOKS. 167 promoted to a judgeship, it may be presumed he was a man of leai'ning and talent ; and secondly, the causes which render the dictum of a judge, as such, greater -authority, than the dictum of any other man, are the same as those which render the dictum of a judge in a law treatise more authoritative than would be the ■dictum of any other. The whole theory of judicial precedent rests in the superstition lying at the very foundation of legal ideas. The earliest notion of law was not the enunciation of a principle, but an authori- tative sentence, rendered after the act passed upon, and assumed to be a direct divine inspiration. The judgment or sentence was from- Grod, the judge was but the minister to announce it. The statement of Lord Coke, that " Almighty Grod openeth and en- largeth the understanding of the (judge) desirous of justice and right " ^ was a consequence of the idea that Grod directly dispensed justice. The judge being inspired, his dicta were to be reverenced and respected. Hence judicial precedent.] A practical remark, which Lord Alvanley has made on text writers, is, — " When we find an opinion in a text writer upon any particular point, we must consider it not merely as the private opinion of the author, but as the supposed result of the authorities to which he refers." '^ It is difficult, in some cases, to draw the line of partition between books that are, and books that are not, authority. Between one writer who has, and another writer who has not, held a judicial situation, the boundary is strongly marked ; but when one, who Jias not been a judge, as Perkins, Hawkins, and Callis, is regarded as authority, the line of separation between ' 9 Co. Preface. ^ 3 Bos. and P. 301. Digitized by Microsoft® 168 TEXT AND OTHER BOOKS. Mm and other writers, to whom the dignity of au- thority is refused, as Williams and Preston, is not easily distinguishable. It may be perceived, never- theless, that a writer, who, like Burn, is " now no more," and whose doctrine, like the rules of Marius,^ has been received by the profession, and whose book, like Marius' book, has been frequently referred to by courts of justice, and by the most able authors treating- upon the same subjects, — may, through these circum- stances, gain the rank of authority ; but, then, what is it that now excludes Marius himself, and Dalton, and Williams, from the same dignified position? These difficulties have been met in the only way in which it has been judged proper to approach them here, — namely, by taking the observations which the Bench has made on different authors, as the guide to range- them. [Story, writing in 1831, says : ^ " Hitherto the juris- prudence of America has attracted very little notice in England, and seems, indeed, to have been passed by with utter neglect. * * * i;rot an English decision or treatise is published three months, before it finds its way to our libraries, and is there studied and criticised with profound attention. It is not too much to say that every just effort is made here to adminis- ter the common law, especially the commercial law, with vigor, with sound judgment, and with elaborate learning. * * * It has struck the profession in America, as somewhat remarkable, that in commercial questions of acknowledged novelty and difficulty, English lawyers should diligently consult the juris- prudence of some of the petty states of continental Europe, without ever deeming that of their own ' 2 Life and Letters of Story, 71. Digitized by Microsoft® TEXT ANB OTHER BOOKS. 16t> descendants in America wortli examination." "The writings of Story are cited as authority in Westmin- ster Hall, and Lord Campbell, in alluding to them in a debate in the House of Lords, spoke of their author as 'greater than any law writer of which England could boast, since the days of Blackstone.' " ^ Again Story says : " English law books are but too often mere digests of cases, arranged with more or less system, but wanting in all the elements of a philo- sophic or scientific treatise. They are generally mere compendiums written for practical lawyers, and -for nisi prius use, serving rather as text books of prece- dents than of principles." ^ " It must be admitted," says Lord Campbell,* " that juridicial writing is a depart- ment of literature in which the English have been very defective, and in which they are greatly excelled by the French, the Germans, and even by the Scotch." [Text writers have sometimes corrected the errors of the courts: thus Chitty, in his treatise on con- tracts, limited the decisions in Dyer v. Pearson,* and Boyson v. Coles,^ and his limitation was adopted and approved in Higgins v. Burton.^ On the other hand, the errors of text writers have sometimes misled the courts: thus the rule laid down in Phillips on Evi- dence, that a memorandum made by a witness cannot be used as evidence, unless the witness, after referring to the memorandum, has a present recollection of the facts to which the memorandum relates, was long adhered to in the highest court of the State of New ' Speech, on motion of tlianks to ■* 3 B. and C. 88, Lord Ashburton, Yth April, 184'?. " 6 M. and S. 14. ^ 2 Story's Life and Letters, 568. ° 26 Law Jour. 352, Ex. ' 1 Camp. Chanc. ch. ix, note. Digitized by Microsoft® 170 TEXT AND OTHER BOOKS. York; but now a different rule prevails/ because it appears that the rule as laid down by Phillips origi- nated in a misapprehension of the cases of Doe v. Perkins and Tanner v. Taylor.] Many of the books, that have been mentioned, having been written by persons at the bar, the present may be considered an appropriate place wherein to impart such information as has been gathered, relative to the weight which the courts attach to the opinions and arguments of counsel. BuUer, J., mentioning a case where " much was said of opinions given by emi- nent men at the bar," adds, " Such opinions, however well considered,' have no weight in the scale of jus- tice." ^ This proposition, as a general one, is probably correct.® And, perhaps, generally speaking, counsel's arguments in another cause does not attract greater respect.^ It appears, however, that sometimes a coun- sel's opinion,^ or argument,^ given or delivered on a different occasion, may with propriety be cited at the bar ; and instances occur, where such an opinion,'^ or argument,^ has been, with respect, noticed on the bench, and such an argument the bench has even relied on.^ On the Lex Mercatoria, the law or usage of com- merce, and generally on the law of nations, the courts consult, with great respect, the doctrines and opinions ' See Halsey v. Sinsebaugh, 15 N. Croke, see 8 Price, 59, and Dan. 291 ; T. 48'7 ; Guy v. Mead, 22 N. Y. 405 ; also 1 Lord Raym. 631. Marcly v. Shultz, 29 N. Y. 351. » 4 Madd. 504; 4 Sim. 362, 363. " Dougl. 328, ed. 1*783, and 341, " 6 Durn. and E. 485. 4th ed. ' 4 Sim. 363, 364. = 2 Bro. C. C.ni;l Madd. 617. = 1 Lord Raym. 631 ; 1 H. Bl. 53. * 2 Lord Raym. 914 ; 1 Stra. 38 ; 2 "6 Durn. and E. 485, 486 ; 8 Durn. Bing. 299 ; Wightw. 36-50. On coun- and E. 518, 519 ; 1 M'Clel. and Y. 192, sel's arguments, reported by Coke and 193. Digitized by Microsoft® TEXT AND OTHER BOOKS. 171 contained in works of many foreign writers ; ^ as Bar- beyrac, ^ Bynkershoek, * Emerigon, * Grotius, ^ Po- thier,® Puffendorff,'^ Vattel,^ Wicquefort.' On the sulbject, besides, of domicile, " there is so little to be found in our own law," that the courts "are obliged to resort to the writings of foreign jurists, for the decision of most of the questions that arise concerning it.^" Such foreign jurists are, Bynker- shoek, Denisart, Pothier, and Voet." And for a variety of purposes,^^ as, to authorize or strengthen an opinion,^® or to gain information on the meaning of a word,^* or on the policy of a system of laws,^^ different books, that are not confined to law subjects, are occasionally referred to and quoted on the bench ; as, for example, Burnet's Discourse of the Pastoral Care ; ^^ Locke's Treatise of Grovernment ; " Smith's Wealth of Nations ;^® Spelman's Glossary f^ Du ' See also chap. viii. and xi. of the present Treatise. ' 3 Burr. 1481 ; 4 Burr. 2016 ; Cas. T. Talb. 283 ; 3 Maule and S. 296. = 3 Burr. 1481; 4 Burr. 2016; 2 Kenyon, 331 ; 6 Maule and S. 102. * 5 Maule and S. 465 ; 2 Barn, and Aid. 81, 82; 3 Barn, and Aid. 402, 403, 406 ; 2 Crompt. and J. 251. ^Dougl. 626, ed. 1783; 3 Burr. 1481; 4 Burr. 2016; 3 Maule and S. 292; 6 Maule and S. 103-106. " 16 East, 395-398 ; 3 Barn, and Aid. 402, 406 ; 5 Barn, and Aid. 480, 481 ; 2 Bos. and P. New Rep. 300. ' 6 Maule and S. 103-106. ' 3 Maule and S. 292-29Y ; 6 Maule and S. 100, 102, 105, 106. ' Cas. T. Talb. 283 ; 3 Burr. 1481 ; 4 Burr. 2016; 3 Maule and S. 296; 1 Taunt. 108. " 3 Meriv. "79. And see 5 Ves. 786. Late cases connected with the subject of Domicile are : In re Ewin, or Ewing, 1 Crompt. and J. 151, 1 Tyrwh. 91; and in re Bruce, 2 Crompt. and J. 436, 2 Tyrwh. 476. " 5 Ves. 763, 786, 789 ; 3 Meriv. 79. " The court's admission of books and other sources of information, for the purpose of evidence, is a matter distinct from the present subject, and will be found fuUy discussed in the modern treatises on the Law of Evi- dence. " 2 W. Bl. 1054; 5 Bing. 165, 166. " 1 Anstr. 44; 1 Brod. and B. 441. " 1 East, 157. " 2 W. Bl. 1054. " 5 Bing. 165, 166 ; 1 Dow and CI. 186; 2 Bligh's New Rep. 159. '" 1 East, 157. " 1 Wils. 114; 2 Bos. and P. New Rep. 507 ; 2 Crompt. and J. 305. Digitized by Microsoft® 172 TEXT AND OTHER BOOKS. Gauge's Glossary ; ^ Minshew's Guide into Tongues ; ^ Johnson's Dictionary;^ Falconer's Marine Diction- ary;* a dictionary of a foreign, as the Italian, lan- guage.^ [Although a general dictionary of the English language is not authority, to show on a trial the mean- ing of a word which is relied on, as deriving a peculiar meaning from mercantile usage, ® yet dictionaries are frequently referred to by the bench and bar. A dic- tionary was referred to in Sprigg v. Rawlinson. '' Webster's Dictionary was cited as authority in Reg. v. Ion ; ^ and in another case,^ Chief Justice Earl, refer- ring to that dictionary, said : " Webster is very impar- tial." " I abstain," said Johnson, J.,^° " from quoting dictionaries." In Burke v. Allison," Justice Byles observed, he " was much struck with the definition of tenant in Webster's Dictionary." A number of dic- tionaries, as well of English as of other languages, are cited in the very learned opinion of Daly, first judge, in Cromwell v. Stephens.^^ Even the poets are some- times referred to; thus Wordsworth is quoted, in Duke of Marlborough v. Osborn ; ^^ Byron is quoted, in Kimball v. Ladd ; " Prior is quoted, in Reid. v. Hood,^^ and Shakespeare is quoted in more cases than we could conveniently enumerate, but we will mention Taylor ' 2 Crompt. and J. 305. ° Earl of Lisburae v. Davies, 1 " 1 H. Bl. 56. Law Rep. 264, C. P. = 2 Bos. and P. New Rep. 285 ; 1 " The People v. Cowles, 13 N. Y. Brod. and B. 441 ; 1 Crompt. and J. 357. 130. " 8 Jurist, N". S. 694. * 1 Brod. and B. 441. "^ 3 Abb. Pr. R. 26 N. S. ; 2 Daly, ' Cowp. 164. 15. » Houghton V. Gilbart, Y Car. and " 5 Best and Smith, 6Y. P 701. " 42 Vermont, 756. ' Cro. Car. 554. , " 2 Nott and McCord, 172. «2Den. C. C. 475; 16 Jur. 746; 14 Eng. Law and Eq. R. 559. Digitized by Microsoft® TEXT AND OTHER BOOKS. 173 V. Bullen/ Duke of Marlborougli v. Osborn,^ and Riddle v. Weldon.^ At tlie bar of the State courts of tlie United States, counsel feel at liberty to cite from, any source wMch. may tbrow ligbt on tlie subject under discussion : tbus, in New York, Charles O' Conor frequently cites the British Reviews ; as, for instance, he did in the Lemon slave case.* The writer once cited a decision of Judge Nelson, from a newspaper report, and the court not only listened to it, but re- ferred to it in the opinion, and stated a concurrence with " the views ascribed to Mr. Justice Nelson." ^] Note. — No dictionary has been so extensively quoted as Webster's. The following is a list of some of the words, the definitions of which in Webster's Dictionary have been adopted and approved by the courts: Prostitute — 8 Iowa, 554. Prostitution — 6 Iowa, 44Y ; 8 Barb Cargo — Kreuger v. Blanck, 5 Law Rep. 183, Ex. Forthwith — Van Wyck v. Hardy, 39 How. Pra. R. 399. Beer — Nevin v. Ladue, 3 Denio, 43 ; The People o. Whelock, 3 Park. Crim. B. 9. House — Thompson v. The People, 3 Park. Crun. B. 208. Willfully, — Injury — Northern R'y Co. V. Carpentier, 3 Abb. Pr. E. 259 ; 13 How. Pr. R. 222. Thoroughfare — Wiggins v. Tall- madge, 11 Barb. 457. Assign — Bump v. Van Arsdale, 11 Barb. 634. Judiciously — 9 Iowa, 236. SMUMly— /A Resident — Hinds v. Hinds, 1 Iowa, 36. Believed — 1 Iowa, 153. Expert — 1 Iowa, 167. Homestead — 1 Iowa, 435. Surety — PitMns n. Boyd, 4 G. Greene, 259. Completed — State v. Bissell, 4 G. N, Y. 306. Digitized by Microsoft® CHAPTER XIII. OF EEPOETS. Ceetaest collections of printed and published cases adjudged by, or that in some way have come before, the courts of Westminster Hall or the House of Lords, are called reports.-' A reported case is authority ;^ and of so much value, that Sir E. Coke deduces from Lit- tleton, that " our book-cases are the best proofs what the law is." ^ To each adjudged case belongs a record,* which Sir E. Coke says, " is regularly a monument or act judicial, before a judge or judges, in a court of record, entered in a parchment in the right roll. It is called a record, for that it recordeth, or beareth wit- ness of, the truth."^ And elsewhere the same great lawyer states of a record, that it is " a memorial or remembrance in rolls of parchment of the proceedings and acts of a court of justice, which hath power to hold plea according to the course of the common law. . . Legally, records are restrained to the rolls of such only as are courts of record, and not the rolls of inferior nor of any other courts, which proceed not secimdum legem et consuetudinem AngUce." ® The record of a case, which has not been reported, is of ' Litt. § 614; Co. Litt. 293 a; 3 "1 Inst. Wj b, 260 a; 8 Inst. 71; Co. Pref. ; 4 Inst. 4 ; 1 Bl. Com. 11. 4 Inst. 4 ; 3 Co. Pref. 3, 4 ; 1 Bl. Com. 'Litt. §420, 614; Co. Litt. 11 a, 69; Spelman's Gloss, ver. Recordvim. 24 a, 264 a, 293 a, 293 b. '■ 3 Inst. 71. = Co. Litt. 264 a. » Co. Litt. 260 a. Digitized by Microsoft® OF REPORTS. 175 great autliority, and is sometimes vouched for proof of the law.-' A record of an adjudged case is a register of "the judgment itself, and all the proceedings pre- vious thereto ; " ^ but, generally speaking, it is not a register of the reasons or causes of the judgment : ^ in the record, "the reasons or causes of the judgment are," observes Sir E. Coke, " not expressed ; for wise and learned men do, before they judge, labor to reach to the depths of all the reasons of the case in question, but in their judgments express not any ; and in troth, if judges should set down the reasons and causes of their judgments within every record, that immense labor should withdraw them from the necessary ser- vices of the commonwealth, and their records should grow to be like Elephantini libri, of infinite length, and, in my opinion, lose somewhat of their present authority and reverence."* It appears, however, not to be universally true, that a record does not contain the reasons of a judgment, since sometimes a decree of the Court of Chancery does contain the ground of the decree.® And Sir E. Coke himself testifies, that, anciently, in some judgments, the reasons of them were set down in the record. This he does in a passage, which may here claim to be noticed, on ac- count of his observations there made on those records and the records of parliament, and their comparative authority. "The reason," he says, "wherefore the records of parliament have been so highly extolled, is, for that therein is set down in cases of difficulty, not ^Litt. § 20, 514; Co. Litt. 24 a, M Bl. Com. 69. 293 b ; 2 "Wils. 92; 2 Tounge and J„ \3 Co. Pref. 3 ; 4 Inst. 4. 363, 367. See also 7 Durn. and E. * 3 Co. Pref. 3. 740, 743. So an unreported case is ° Lane v. "Williams, 2 Vern. 277> sometimes cited from the register- 292, ed. Raithby; cited 1 Meriv. 564. book of the Court of Chancery. 1 Wesfs Cas. T. Hardw. 362, 374. Digitized by Microsoft® 176 OF REPORTS. only the judgment, or resolution, but the reasons and causes of the same by so great advice. It is true, that of ancient time in judgments at the common law, in -cases of difficulties, either criminal or civil, the reasons and causes of the judgment were set down in the record, and so it continued in the reigns of Edward I, and most part of Edward II ; and then there was no need of reports : but in the reign of Edward III, {when the law was in its height,) the causes and reasons of judgments, in respect of the multitude of them, are not set down in the record ; but then the great casuists and reporters of cases (certain grave and sad men) published the cases, and the reasons and causes of the judgments or resolutions, which, from the beginning of the reign of Edward III, -and since, we have in print. But these, also, though of great credit, and excellent use in their kind, [are] yet far under- neath the authorjjiy of the parliament rolls, reporting the acts, judgments, and resolutions of that highest court." ^ A record, so far as it extends, is the best test of the correctness of a report of a case ; ^ and, to try such correctness, a court or judge, therefore, often refers to it.^ And, contrariwise, as generally speaking the record of an adjudged case does not contain the reasons the court gave for its judgment, it is, in ordinary instances, necessary to search for them in some other source ; and one source for this purpose is, a. report of the case ; reports being, according to Sir ' 4 Inst. 3. Maule and S. S18 ; 9 Barn, and Cr. ' 2 Lord Raym. 1203 ; 2 Maule and 282 ; 1 Crompt, and M. 267; 3 Swanst. S. 567 ; 3 Ves. 656 ; 4 Inst. 17. 466 ; Ambl. 469 ; 4 Dow, 201 ; 1 Bl. ' 2 Lord Raym. 982, 1121 ; 6 Mod. Com. 71. 76 ; Willes, 181, 569 ; 1 Stra. 209 ; 2 Digitized by Microsoft® OF EEPOETS. 177 "W. Blackstone's general description, " histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record ; the argu- ments on both sides, and the reasons the court gave for its judgment, taken down in short notes by persons present at the determination." " And these," he adds, " serve as indexes to, and also to explain, the records ; which always, in matters of consequence and nicety, the judges direct to be searched." ^ A further mean to correct a report of a case is, a manuscript note of it,* or the judge's own note of it.^ Sir E. Coke mentions the fact, that " the kings of this realm, that is to say, Edward III, Henry IV, Henry V, Henry VI, Edward IV, Kichard III, and Henry VII, did select and appoint four discreet and learned professors of law to report the judgments and opinions of the reverend judges ; " and by this con- sideration, among others, it may, he observes, evidently appear "how profitable and necessary the reports of the judgments and cases in law published in former ages have been." * And, according to Sir "W. Black- stone, " The reports are extant in a regialar series from the reign of Edward II, inclusive ; and, from his time to that of Henry VIII, were taken by the prothono- taries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the name of the year-books." ^ And the same learned writer, in continuation, says : " It is much to be wished that this beneficial custom had, under proper regulation, been continued to this day ; ' 1 Bl. Com. VI. * 3 Co. Pref. 'Willes, 166; 5 Dura, and E. 107; '1 Bl. Com. 11. On the year- 3 Bos. and P. 652; 2 Yes. Jun. 238, books, see Hale's Hist, of Com. L., oh. 431. iv, vii, and viii; also 6 Barn, andi » 4 Yes. 24. Cr. 1. Digitized by Microsoft® 178 or BBPOETS. for though King James I, at the instance of Lord .Bacon, appointed two reporters, with a handsome stipend, for this purpose, yet that wise institution was soon neglected ; and, from the reign of Henry VIII, to the present time, this task has been, executed by many private and contemporary hands, who, sometimes through, haste and inaccuracy, sometimes through mis- take and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination." ^ These observations of Black- stone are authorized by numerous instances of cases which the bench has mentioned to be reported inac- curately,^ or differently, by different reporters.^ It sometimes complains that it cannot collect from the report, " upon what grounds the court went," * or " what the exact point before the court was," ^ or " what points were determined." ^ It has considered a particular case, cited from a report, as " too vague to be acted upon by the court." ^ Under the system of reporting by " private and contemporary hands," * it is not to be expected that the reports of different reporters will be of equal credit and authority, and experience proves that this equality does not exist.' It proves, besides, that in ' 1 Bl. Com. 72. ' 1 Lord Raym. 416 ; Willes, 181, = Lord Eaym. 522; 12 Mod. 294; 182, 569; 4 Barn, and Adol. 11*?; 3 Willes, 181,182, 245,569; 1 Burr. 458, Atk. 804; Ambl. 459; 3 Russ. SOln.; 459 ; 5 Burn, and E. 107 ; 1 Durn. and 1 Crompt. and M. SOY, 308 ; 1 Sch. and E. 239 ; 1 West's Gas. T. Hardw. 524 ; Let 259. Ambl. 55, 56; 2 Ves. Jun. 120, 234, * Ambl. 55; 1 Crompt. and M. 266 ; 238, 431 ; 3 Ves. eYT, 678 ; 4 Ves. 24, 1 Bos. and P. 605. 689; 5 Ves. 85, 661; 6 Ves. 640; 8 ' M'Clel. 52. Ves. 250; 3 Russ. 71 ; 4 Rusa. 340 ; 5 "3 Bro. C. C. 398. Russ. 96 ; 2 Kuss. and M. 115 ; 3 Anstr. ' 1 Mont, and Mac. 281. 824, 941; 13 Price, 168; M'Clel. 52, " 1 Bl. Com. 72. 59; 1 Crompt. and M. 307, 308; 5 "IStra. 71; 5 Burr. 2731; 3 Burn. Madd. 358 ; 1 Sch. and Lef. 85, 65, 71, and E. 17. 269, 268, 296, 378. Digitized by Microsoft® OF EEPOETS. 179 the same reports, all tlie cases there are not equally well reported.^ Between several reporters of a case, one of whom was counsel in the cause, it is naturally, perhaps, sometimes found that he, who was that counsel, has best reported it.^ Because " booh cases are the best proofs what the law is," * and " the judgments of the courts of West- minster Hall are the only authority that we have for by far the greatest part of the law of England," ^ the goodness of reports is necessarily a matter of much importance; and, viewing cases as amongst the ma- terials of which the courts construct their judgments, a subject of needful consideration is, the degree of estimation which judicial opinion has affixed to differ- ent reports. Some such opinions that have been gathered in this matter may, therefore, with propriety be here introduced. Reporters to whom the opinions mentioned relate are: Barnardiston. — When relying on a case in his King's Bench Reports, Lord Kenyon says of them, it is " not a book of much authority in general." In this instance, as his lordship noticed, this report agreed with Strange's report of the same case.® On one occasion. Lord Mansfield absolutely forbade counsel's citing Barnardiston's Reports of Cases in Chancery. He said it was marvelous to those who knew the reporter, 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.^ Sir R. P. Arden, citing a case in ' Willes, 181, 182 ; 1 Sim. 432. " 3 Bing. 588. « 1 W. Bl. 101 ; 1 Burr. 428 ; Ambl. ' 8 Durn. and E. 48. 193. • 2 Burr. 1142, marg. ^Co. Litt. 2S4a. Digitized by Microsoft® 180 OF KEPOBTS. the same reports, admits that " the reputation of the book is not very high;" and, for this reason, his honor looked into the registrar's book, where, he adds, the case is very nearly as reported.^ Lord Manners, relying on a case in these reports, observed : "Although Barnardiston is not considered a very correct reporter, yet some of his cases are very accu- rately reported." * And Lord Eldon, speaking of the same reports, and remarking on Lord Mansfield's opinion of them, has said : " In that book, however, there are some reports of great value." ^ "I take the liberty of saying that in that book there are reports of very great authority." * Brown. — On counsel mentioning a case in Brown's Chancery Reports, Sir L. Shad well observed, it is " one of the cases in Brown, upon which no reliance can be placed with regard to the statement." ® Bunbury. — Lord Mansfield, in trying a cause, saved a particular point upon certain cases cited out of Bun- bury. When the cause came before the court in bank, and counsel mentioned a case in those reports. Lord Mansfield said : " Mr, Bunbury never meant that those cases should have been published; they are very loose notes." ° Sir T. Plumer, in postponing his final decision in a cause to look into a case cited from Bunbury, ob- serves of these reports, it is a book " certainly of no great authority." ' Burrow. — When Burrow reports a case, in which the court returned a certificate to the Court of Chan- ' 4 Bro. C. C. 36. augmented by the corrections and ad- ' 2 Ball and B. 386. ditions made thereto by Mr. Belt and ^ 1 Dow and CL 11. Mr. Eden^ in their editions of that ' 1 Bligh's New Rep. 538. work. " 4 Sim. 173. The value of Brown's = 6 Burr. 2658, 2659. Reports, it may be noticed, is greatly ' 2 Madd. 140. Digitized by Microsoft® OF EEPORTS. 181 eery, but did not publicly give the reasons of their opinion, full reliance may be placed on bis statement of that opinion, and on the grounds of it, as supposed by him. For, speaking of such a case, Buller, J,, says, that Burrow "certainly had the highest assistance in stating what he calls the probable grounds of the judgment ; " ^ and that assistance is explained by the same learned judge, when, on a former occasion, citing the same case, he said : " It has been openly acknowl- edged by Lord Mansfield, and I have had repeated opportunities of hearing it from him in private, that he has given to Sir J. Burrow his own note and opinion of a case, which he could not deliver publicly in court ; for it was not at that time the practice of this court [K. B.] to give their opinions here in cases which came from the Court of Chancery." ^ Carthew. — Chief Justice Willes having occasion to speak of a case, in reporting which he fancied Carthew was mistaken, made the observation : " I own that Carthew is, in general, a very good and very faithful reporter." ^ Coke. — It is not to be disputed that Blackstone is justified in saying, that some of the most valuable of the ancient reports are those published by Lord Chief Justice Coke." * Of the same reports. Lord Bacon affirms, that " though they may have errors, and some peremptory and extra-judicial resolutions, more than are warranted, yet they contain infinite good decisions and rulings over of cases." ^ Several judicial opinions on Coke's report of individual cases show the pro- priety of receiving with some caution cases reported ' 1 Bos. and B. 686. * 1 EI. Com. 12. ' 3 Durn. and E. 96. ' Proposal for amending the Laws » WiUes, 181, 182. of England. Digitized by Microsoft® 182 OF EEPOETS. even by Mm. He has been charged with inserting his own opinion in the report. Chief Justice Holt, speak- ing of Southcote's case/ and dissenting from an opinion there, says : " My Lord Coke has improved the. case in his report of it." ^ Chief Justice Willes, citing Gage's case,^ which, he 'says, "is not rightly reported by Lord Coke," and is otherwise reported in Moore, whose report, on searching the record, has been found to be right, goes on to say, referring to the point in that case : " But I own, if this point were to come as a new question before me, I should be of the same opinion with Lord Coke, who often gives his own instead of the opinion of the court." * And, to the same effect, Gould, J., noticing a particular doctrine in Mary's case,^ remarks : " I always thought the doc- trine of Lord Coke in Mary's case a singular doctrine of his own, and not any part of the judgment of the court." ® On his manner of reporting, Coke himself observes that it " is summary, relating the effect of all that was said of the one side by itself, and so likewise of the other, beginning ever with the objections, and concluding with the resolution and judgment of the court," " which," he adds, " I hold to be the best order of relation." "^ The twelfth part of Coke's Eeports is of less estimation than the preceding eleven parts, Holroyd, J., naming a case there, and adverting to a point in it which, as it seemed to him, might be ques- tionable, says : "The book in which that case .is found is not so accurate as the rest of the reports of Lord ' 4 Co. 83 b. ' 10 Co. Pref. xi b, xii. And see, ' 2 Lord Raym. 913, 914. further, on Coke's, and also on Croke's ° 5 Co. 45 b. manner of reporting the observations * Willes, 568, 669. of Richards, C. B., 8 Price, 59 ; and » 9 Co. 111b. Dan. 291. » 2 W. Bl. 1234. Digitized by Microsoft® OF REPORTS. 183 Coke, not Laving been pnblislied by Lira in his life- time, but from his notes afterwards." ^ And Parke, J., expressing an opinion that a part of the same case cannot be law, observes : " The 12 th Rep. is not a book of any great authority ; " and he mentions, besides the above opinion of Mr. Justice Holroyd, an opinion of Mr. Hargrave, that the 12th Rep. is " of ^nall author- ity," and of Mr. Serjeant Hill, that it is " not fit to be allowed." ^ It appears, however, that this part of Coke's reports is not always so lightly esteemed,* with regard, at least, to some cases in it; as Grraham, B., has relied on a case there as authority ; * and, on an- other occasion, Alexander, C. B., delivering the judg- ment of the court, waved the easy citation of other cases to support their opinion, and observed : " I shall merely refer to the high authority of Lord Coke on the point, in the Earl of Derby's case, 12th Rep. 114." « [It was made part of the sentence, on suspending Coke as chief justice, that, in this enforced leisure, " he should enter into a view and retractation of such novelties and errors and offensive conceits as were dispersed in his reports."- Afterwards, on being brought before the Privy Council to give an account of what he had done in the way of correcting his reports, he declared that in his eleven volumes, con- taining five hundred cases, there were only four errors. Of these reports his enemy. Bacon, said : " To give every man his due, had it not been for Sir Edward Coke's reports, which, though they may have errors,® ' 4 Barn, and Aid. 614. * M'Clel. 331, 332. » 10 Barn, and Cr. 275. ' 1 M'Clel. and Y. 319. ' See the opinion prefixed to it, ° 3 Campbell's Lives of the Chan, dated 1655, and signed Edw. Bui- —Life of Lord Bacon, strod. Digitized by Microsoft® 184 OF KEPORTS. and some peremptory and extra-judicial resolutions more than are warranted, yet they contain infinite good decisions and rulings over cases — the law by this time had been almost like a ship without ballast."] Dickens. — Of him, Lord Eedesdale says, — "Mr. Dickens was a very attentive and diligent register; but his note*, being rather loose, were not considered as of very high authority ; he was constantly applied to, to know if he had anything on such and such sub- jects in his notes ; but, if he had, the register's books were always referred to." ^ Fitzgibbons. — Lord Hardwicke, referring to Arthur V. Bockenham, in Fitzgibbons, continues his observa- tion by saying, — which book " I do not care to rely on, as it is of no authority, though this and some other cases are well reported in it ; this particularly, very finely, for I have a manuscript note of it. "'^ And Chief Baron Parker, mentioning that case, and also Bunter v. Coke [Bunker v. Cooke,] in the same reports, adds, — "The cases in this book are very incorrectly reported; but I have been credibly in- formed that these two arguments are authentic." ^ Hobart. — Lord Kenyon calls Hobart's Eeports, " his excellent volume of reports." * Keble. — Chief Justice Willes mentions Keble as a reporter, who *' seldom enlightens anything." * Lord Mansfield and Lord Kenyon style him, "a bad re- porter." * Counsel having relied on a case in 3 Keble, Ashhurst, J., observed, — " This book does not stand in the highest degree of authority in general; ■ 1 Sch. and Lef. 240. ' Wille3, 245. = 1 Kenyon, 71; 1 Burn, and E. " Dougl. 292, ed. 1783, and S04, 418 n. See 3 Atk. 806. 4th ed.; 8 Durn. and E. 17. And see » 1 West's Gas. T. Hardw. 509. 6 Burr. 2731 ; 3 WUs. 330, and 6 • 6 Durn. and E. 441. Bing. 664. Digitized by Microsoft® OF EEPORTS. 185 and I do not think tlie intrinsic merit of tlie report itself of this case will add much to its authority." ^ And, on the same occasion, Lord Kenyon said, — " As to the case cited from 3 Keble, my brother Ashhurst has already observed, that that reporter is not always accurate ; and if any instance were wanting to warrant the observation, the case referred to would prove it ; because he there referred to another case of his own reporting, as of the preceding term, which is not there to be found." ^ Levinz. — Of him. Lord Mansfield says, — " Levinz is a much better reporter than Keble." ^ And where a cited case was reported by both. Lord Kenyon ob- served, — "The case cited from Levinz is entitled to greater consideration than that in Keble, who was a bad reporter." * The same superiority Lord Mans- field seems to have assigned to Levinz, with refer- ence to another case reported by him and also by Keble. « Mosely. — In a cause in the King's Bench, counsel relied on a case that he cited from these reports, " which book Lord Mansfield told him he should not have quoted." ® In another cause, counsel having cited a case from the same reports, Thompson, B., observed, — " As to the case in Mosely, the authority of that book is very small." ^ Another, and more favorable, opinion of these reports, remains, however, to be shown, — an opinion that will probably be con- ' 4 Burn, and E. 646. ance with it was not at that time uni- * 4 Durn. and E. 649. versal, since, in the same cause, coun- ' 5 Burr. 2731. sel (Mr. Mansfield) in reply, observed, * 3 Burn, and E. IV. — " As to the case cited from a book, ° 5 Burr. 2731. called Mosely's Reports, he owned he ' 5 Burr. 2629. It is possible that had never seen such a book." Ibid. Lord Mansfield had not then much ' 3 Anstr. 861. knowledge of that book : an acquaint- Digitized by Microsoft® 186 OF EEPOETS. siclered to give preponderance to an advantageous judgment of them. Lord Eldon having mentioned a case there, takes occasion to state, — " In speaking of the book, in which this case of W. v. S. is to be found, I wish to make one other observation. That book has been brought into some disrepute by a saying of Lord Mansfield's, that no man should cite Mosely. I myself think very difi'erently from Lord Mansfield on that subject, having always considered Mosely's Re- ports as a book possessing a very considerable degree of accuracy." ^ And, according to another report of the case, in which this passage is found, Lord Eldon observed, that " although Lord Mansfield has said, that Mosely ought not to be cited, there are cases of great consequence in those reports." ^ Noy. — His reports being mentioned by Buller, J., this learned judge adds, — "But that book has always been considered as a bad authority." ^ A reason for this is assigned by Twisden, J., when, " for the case in Noy's Reports, 23," he said, " he wholly rejected that authority ; for it was but an abridgment of cases by Serjeant Size, who, when he was a student, bor- rowed Noy's Reports, and abridged them for his own use." * Another account of the same opinion is, — " Noy, 23, I wholly reject, as only an abridgment of cases per Serjeant Size, when a student." ^ " 1 Meriv. 92. Noy's Reports, it may not be amiss to '^ 19 Ves. 488 n. (5). apprise the student that, though the ^ 3 Durn. and E. 424. And see Cun- book is known by the name of that ningham on Sim. YY, 166. very learned lawyer, yet there is not * 1 Ventr. 81. the least reason to suppose that such ' 2 Keb. 662. A note from Lord a loose collection of notes was intend- Hale's MSS. being added to Coke's, 1 ed by him for the public eye. In an Inst., and in which note is cited a edition of Noy's Reports, penes edi- caae in Noy's Reports, Mr. Hargrave torem, there is the following observa-' observes thereon, — "As Lord Hale tion upon them in manuscript: '-4 makes so frequent a reference to simple collection of scraps of cases made Digitized by Microsoft® OF EEPOETS. 187 Rolle. — Of a case reported by both. Rolle and Palmer, Lord Parker, C. J., prefers the report by Eolle, observing, — "I have looked into the case of S. V. M. in Palm. 100, and 2 Rolle's Rep. 166, 189, which Rolle never transcribed into his abridgment; he being at that time the experter reporter, has given the fullest account, and is chiefly to be regarded. For that case is 17 Jac. I, and Palmer vpas not attorney- general till King Charles the Second's Restoration, (1 Sid. 465,) and must have been very young when that case was adjudged."^ Salkeld. — Lord Hardwicke, mentioning a case in 3 Salkeld, parenthetically says, — " (which by the by is a book of no authority, though the two first volumes are."^) Saunders. — Of him, Yates, J., says, — "Saunders was much the most accurate of the reporters of his time."^ And Lord Eldon, in the year 1799, speaks of the same reports, as " that excellent book, the Reports of Saunders, made more excellent by a late edition." * Strange. — Referring to a case reported by him. Sir A. Hart states, — " Although Strange is not a book we can place much confidence in, yet, in this particular instance, it appears to be a very able and sound judg- ment, and well reported." ^ Williams. — Sir R. P. Arden, citing a case, says,- — 6y Serjeant Size, from Nay's loose not altogether useless." 1 lust., ed. papers, and imposed upon the world Hargrave, 54 a, n. for the reports of that vile prerogative ' 1 Stra. 1\. fellow, Noy.' This account of Noy's " Ambl. 12. Reports, which was probably written ' 3 Burr. 1730. soon after the first publication, in ' 2 Bos. and P. 23. 1656, though expressed in terms inex- " Siin. 432. cusably gross, contains an anecdote Digitized by Microsoft® 188 OF EEPOETS. " It is most accurately reported, as most of the cases are, in Peere Williams." ^ Winch. — Of his reports. Lord Kenyon states, — " The cases in Winch are, in general, well reported ; but in the preface to Benloe's and Dalison's Reports, it seems as if those were not really the reports of Sir H. Winch; for it is there said, 'the book called Winch's Reports, but improperly enough ascribed to that learned judge.' And, indeed, it appears that several of the cases in that book were decided after Sir H. Winch's death." ^ Besides Reports, which bear the name of the Re- porter, there are many volumes of reports, which con- sist of collections of cases published anonymously; and, in these instances, it is often unknown by whom the notes of the cases were taken. Anonymous reports, some judicial remarks on which have been gathered, are : — Cases in Chancery.^ — Lord Manners, expressing his dissatisfaction with a case in the first volume, says, — " It comes from a book of very doubtful authority." * And on Lord Eldon mentioning in the House of Lords, the propriety that the registrar's book should be searched for a particular case in the second volume. Lord Redesdale concurred by- saying, — " Yes ; for the chancery cases are very incorrect." * Modern Cases in Law and Equity. — Wilmot, J., citing a case in the first part or volume^ of these ' 4 Ves. 464. And the three volumea of them are = 6 Durn. and E. 441. usually cited as 1, 2, or 3 Ch. Rep. ' The two parts or volumes of * 2 Ball and B. 183. these reports are commonly cited as 1 '6 Dow, 9. or 2 Ch. Cas. And it is proper to no- ° This volume appears to be cited tice, that "Reports of Cases in Chan- as 8 Modern; 1 Durn. and E. 239; % eery " are a distinct collection of cases. Burr. 1166. Digitized by Microsoft® OF EEPORTS. 189 Reports, observes, — " That case is reported in Modern Cases in Law and Equity ; but it is totally mistaken tbere, as indeed are nine cases of ten in tbat book. "^ Precedents in Chancery. — Lord Loughborough names these reports, " a book of considerable au- thority." For mentioning a case there, which he found to be "totally mis-reported," and adverting to a circumstance connected with it, he says, — "I thought it right to mention this, lest that case being found in a book of considerable authority might mis- lead again." ^ Select Cases in Chancery. — These Reports Lord Redesdale calls, " a book of no great authority." * In addition to the cases published in volumes dis- tinctively named Reports, there are many which are published, and may therefore be said to be reported, in books of a separate character, or in a manner other- wise different. Books of such separate character, and which contain cases so reported, are chiefly works en- titled, Abridgments of Cases. Abridgments on which, as reports or otherwise, some judicial observations have been found, are : — Brooke's Abridgment* — Heath, J., with reference to a remark that had been made by Rooke, J., says, — "I observe my brother Rooke seems to think, that what is laid down by Brooke is not of much author- ity ; but I have always understood that the abridgers had access to the records themselves ; and many cases, that appear in the Year Books with an Adjornatur, ' The King v. Ashton, 8 Mod. 175, '2 Scb. and Lef. 634. cited in Rex v. Vipont, by Lord Ken- * A work of Sir Robert Brooke, yon, stated from a MS., 1 Durn. and Chief Justice of the Court of Common E. 238, 239. Pleas. ' 5 Ves. 664. Digitized by Microsoft® 190 OF EEPOKTS. are laid down by them as decided; wLicli could be only by their having access to the records." ^ EoUe's Abridgment of many Cases and Resolutions of the Common Law.* — This work, Lord Kenyon men- tions, was published under the inspection of Sir M. Hale.^ And Graham, B., calls it, "one of the best books of the kind we have."* Twisden, an eminent judge in the reign of Charles II, with reference to an opinion of Rolle that had been cited, says, — "That Avas his opinion, it may be, when he was a student. You have in that work of his a commonplace, which you stand too much upon. I value him where he re- ports judgments and resolutions. But otherwise it is nothing but a collection of Year Books, and little things noted when he made his commonplace books." ^ A General Abridgment of Cases in Equity.^ The following observations have been made on two vol- umes of this Abridgment, considered as a work con- taining reports of cases. The first and second volumes do not, it will be seen, bear the same character. The first volume Sir R. P. Arden designates as "a very good book." '' Buller, J., was satisfied of the accuracy of a report of a case there, " considering the authority of the book in which that case is contained." ® Also ' 3 Ves. 656. citing a case in the first volume, and ' A work of Mr. Sergeant Rolle, also reported in Precedents in Chan- afterwards Chief Justice of the Court eery, observed, — "It is supposed that of King's Bench. Mr. Pooley, who was the collector of ' 4 Durn. and E. 64 ; 5 Burn, and the cases in Precedents in Chancery, E. 205. was also the compiler of the first * 9 Price, 618. part of Equity Cases Abridged; and ' 1 Mod. 273. certainly the cases pre generally, as ' Two volumes published, " unrec- well as in this instance, verbatim in ommended by any authoritative ap- one book and in the other." 1 Sch. probation, or even a name la the title- and Lef. 269 n. See also 3 Ves. 286. page." They are commonly cited as ' 4 Ves. 666. 1 or 2 Eq. Cas. Abr. Lord Redesdale, ' 5 Durn. and E. 61. Digitized by Microsoft® OE REPORTS. 191 Eyre, C. J., concluded it to be probable, tliat a case tbere reported was correctly stated.-^ Sir T. Plumer and Lord Manners concur in opinion, that tbe second volume is a book, " certainly, of no great authority." ^ Lord Eldon, speaking of a case reported by Barnardis- ton, observes in continuation, — " The case happens to be reported likewise in another book of no very high character, — I mean the second volume of the Equity Cases Abridged. It is not so high in character, as the first volume of the Equity Cases Abridged." * A tes- timony, favorable, however, to this report of the case his Lordship elsewhere offers in these words: — "The case is reported in the Equity Cases Abridged, and re- ported from a valuable manuscript, as I know, from having had the assistance of a genuine report from the library of Lord Redesdale."* Sir R. P. Arden, rely- ing on a case in the second volume, and which, it would seem, he supposed to be reported, and not merely abridged,® there, says, — " Though this book is not a book of the first authority, I must be guided by such cases as stand in point there ; and particularly by a case which contains so much sense, as induces me to rely upon it, in conjunction with the other authori- ties." « Several cases inserted in Viner's Abridgment are taken from a source, which he names, " MS. Rep. said to be Lord Harcourt's," '^ or, merely, " MS. Tab." » On counsel citing a position laid down " in the marginal ' 1 Bos. and P. 614. abridgment of the report in 8 Vin. ' 2 Madd. 140 ; 2 Ball and B. 28. Abr. 289, tit. Devise, pi. 25. ' 1 BUgh's New Eep. 538, 539. ' 2 Bro. C. C. 45, 46. ' 1 Dow and Cl. 11. ' For example, 13 Vin. Abr. 544, ° The case is. Palmer v. Schribb, 2 tit. Fraud, A. a., pi. 12, 13. Eq. Gas. Abr. 291, but not reported ° For example, 14 Vin. Abr. 457, from MS., and on the contrary a mere tit. Interest, C. pi. 4, marg. Digitized by Microsoft® 192 OF EEPOBTS. table of cases in tlie House of Lords, made by Lord Harcourt," and observing, " that index is quoted fre- quently by Viner as .authority," Lord Loughborougli interposed and said — " The index to the cases in the House of Lords only refers to the cases. One decree by Lord Harcourt will be much better authority. There is no doubt that it is the work of Lord Har- court's secretary, whom he employed to make that index."^ Lord Redesdale, mentioning a case referred to in Viner's Abridgment, and there stated from a " MS. Kep. said to be Lord Harcourt's," observes on it — " It is said to be taken from Lord Harcourt's Tables, which are extremely accurate ; but I have not been able to find the case."* The same index or table exists in manuscript ;^ and it may be useful to remind the reader, that in the Table of Principal Matters in Brown's Reports of Cases in Parliament, ed. Tomlins, " are included the contents of a manuscript index pre- pared by or for Lord Chancellor Harcourt, and which is the MS. table so frequently quoted by Viner in his Abridgment." * Many of the notes in Dyer's Reports contain ac- counts of cases, which may be considered as reporte'd by those notes. The notes referred to are those added by Chief Justice Treby. Grose, J., refers to certain notes there, as the addition of that learned judge.® And on counsel citing a case stated in one of the notes in Dyer, and enforcing his objections to that case by the remark, " besides that it is only a marginal note," ' 2 Ves. Jun. 159. in the Printed Cases upon Appeals to " 1 Sch. and Lef. 380. the House of Lords, since the year ' The author possesses an ap- IVOl to the year 1728." parently early MS. copy of this col- * Vol. I, Advertisement; vol.VIII, lection of cases. It is entitled, " A p. 339. Table to the most remarkable Points ' 6 Durn. and E. 442. Digitized by Microsoft® OF EEPOBTS. 193 Buller, J., interposed the observation — " The marginal notes in Dyer are good authority ; they were written by Lord Chief Justice Treby." ^ And Gibbs, C. J., refer- ring to certain marginal notes there, refers to them as notes, "which are always to be regarded with deference, coming from an authority so considerable as Chief Justice Treby." ^ * [The subject-matter of this chapter has been so ad- mirably treated in Mr. Wallace's very interesting book, entitled " The Reporters," that we content our- selves by referring our readers to that work for fiir- ther information on the subject. [In England, the existence of numerous independ- ent reporters, each proceeding according to his own views, was found so inconvenient as to call for a change, and now under the supervision of a Council of Law Reporting, the series of reports known as " The Law Reports," have superseded almost all the pre- viously existing reports. [As regards the reports of the United States, we must be pardoned if we say they are very voluminous, and for the most part very bad. Some of the series of New York reports have had, and have a good reputa- tion ; but the reports of the highest court of that State, at one time, became so bad as to call forth the follow- ing strong animadversion : " The recent reports of cases in the Court of Appeals, except that of Mr. Hand, are an outrage upon the court, the profession, and the world." ^ [Keeping in view the number of States, and that in many of these States there are several series of reports, it will be obvious how utterly impossible it ' 2 Durn. and E. 84. ' 1 Albany Law Jour. 265. ' 4 Dow, 202. 13 Digitized by Microsoft® 194 OF EEPOKTS. •would be, witMn any reasonable space, or with any degree of precision, to attempt an exposition and analysis of the respective merits and defects of Amer- ican reports and reporters. Such a topic would readily, if not necessarily, occupy a volume. One general feature seems to pervade the entire series of American reports. The judges write the opinions; and the reporter, it would seem, considers his duty fulfilled, if he sees to it that the opinions are repro- duced in type, with more or less accuracy, bound up into a volume, with an index and a table of the cases alphabetically arranged. So far as our knowledge extends, we are not aware of the existence of any reporter who undertakes to report oral decisions, nor ventures upon the responsibility of editing the opinions delivered to him for publication. By editing^ of course, we intend the abridging or rearranging, as the reporter may, in his judgment, seem necessary. On the subject of reports, in addition to Mr. Wallace's book, which we have already noticed, we would refer the reader to Kent's Commentaries, vol. I, section xxi, and to two articles in the American Jurist, volumes VIII and X ; one article by Judge Metcalfe, and the other by Charles Sumner. [Bouvier, in his Law Dictionary, title Reports, remarks: "The number of reports has increased to an inconvenient extent, and should they multiply in the same ratio which of late they have done, they will soon so crowd our libraries as to become a serious evil. The indiscriminate report of cases of every description is deserving of censure. Cases, where first principles are declared to be the law, are reported with as much care as those where the most abstruse questions are decided. But this is not all ; sometimes two reporters, with the true spirit of book-making, Digitized by Microsoft® OF BEPORTS. 195 report the same set of cases, and thereby not only unnecessarily increase the lawyer's already encumbered library, but create confusion by the discrepancies which occasionally appear in the report of the same case. The modern reports are too often very diffuse and inaccurate. They seem too frequently made up for the purpose of profit and sale, mucb of the matter they contain being either useless, or a mere repetition, while they are deficient in stating wha,t is really important." [The following list exhibits the number of volumes of Reports, in each State, at the close of the year 1870 : The increase in New York is at about the rate of ten volumes a year — Vols. Alabama 63 Arkansas 25 California 37 Connecticut 43 Delaware 6 Florida 13 Georgia 43 Idaho 1 Illinois 60 Indiana 40 Iowa 31 Kansas 5 Kentucky 68 Louisiana 73 Maine 56 Maryland 73 Massachusetts 101 Michigan 23 Minnesota 14 Mississippi 44 Missouri 45 Vols. Nevada 5 . New Hampshire 47 New Jersey 53 New York 348 North Carolina 63 Ohio 43 Oregon 3 Pennsylvania 139 Rhode Island 7 South Carolina 83 Tennessee 46 Texas 33 Vermont 50 Virginia 63 Washington Territory 1 West Virginia 3 Wisconsin 39 United States Supreme, Cir- cuit, etc.. Courts 150 Total number 2013 Digitized by Microsoft® CHAPTER XIV. OF PBECEDEKT; CONSISTINa OF ONE OE MORE THAN ONE DECISION IN BANK, OK ON APPEAL. Sect. I. Of Adherence to one Decision. H. Of Adherence to two or more Decisions. II r. Of Departure from one Decision. IV. Of Adherence to a Fixed Doctrine. V. Of Discordant Decisions, or Series of Decisions. SECTION I. OF ADHEEENCE TO ONE DECISION. [" I AM aware," said Senator Root, in Henry v. Bank of Salina,^ " that the lawyers generally understand, and so I have, in some measure, treated the suhject myself, that the decisions of our higher courts establish the law upon the matters decided, and t^at such decision becomes the law of the land to govern thereafter in all cases to which it applies. That notion of the power and efficacy of judicial decision most probably has its influence with the members of this court, I hope it will not, however, have such an influence as to induce them to treat legislative enactment as secondary and subordinate to judicial enactment, and under its control I hope we shall consider Avhat a de- cision really is, and treat it accordingly, not, as the law nor as giving the law, but simply as evidence of the law; and not conclusive evidence, but only as prima facie evidence of what the law is. The most elaborate and mature decision of our highest ' 5 Hill, 535. Digitized by Microsoft® OF ADHEREKOE TO ONE DEOISIOK. 197 court is but prima facie evidence of the law, for tlie Legislature may declare it otherwise."] " The law of England, which is exclusive of posi- tive law enacted by statute, depends upon principles."^ [And legal principles are as authoritative upon the courts, and control their decisions as absolutely as a legislative enactment.^ For " if law be a science, and it really deserves so sublime a name, it must be founded on principle."^] On these principles it is often the duty of a court to decide a case ; * as, for- ex- example, a case that is new, or one like to which a case decided is not to be found.'' A case decided is called a precedent ; ® and is an authority, which, under many circumstances, binds a court to make the same decision in a future similar case.'' [If the rule of stare decisis is of any value, it should be adhered to, " When the precise question is again presented in the same court, between the same parties, and substan- tially on the same state of facts," ^ *' A solemn decision upon a point of law, in any given case, is authority in a like case ; . . . the highest evidence of the law applicable to the subject. If a decision has been made, upon solemn argument and mature deliberation, the presumption is in favor of its correctness." '] ' Cowp. 39. That wilderness of single instances, = Com'wealth v. Chapman, 1 3 Met. "^^^"^ '''"''•' «■ ^™ ^^ '"' "■■ f""^™^ '«'!. „o ^. 1,, ,. -,, ,. „- Ai ant May beat a pathway out to wealth and fame." 68, 70 ; Martin v. Martin, 25 Ala. 201 : rr^'.„ t. , , , „•■ ,^ »» ' ' ' * Tenmfscn/s Aylmer^a Field, p. 73. Powell V. Brandon, 24 Miss. 343. » Jones on BaUments. ' Dongl. 326, 82'7, ed. 1783; 1 * Cowp. 39; 2 Bob. and P. 24, 25, East, 541, 642; 6 East, 513 ; 1 Maule 374 ; 7 Dnrn. and E. 148 ; 2 Brod. and and S. 696, 697 ; 7 Barn, and Cr. 477 ; B. 505 ; 2 Bro. C. C. 340 ; 7 Ves. 195. 3 Bing. 391 ; 2 Crompt. and M. 64; 3 ' Cowp. 39: 7 Taunt. 515, 616; 1 "Ves. 313; 2 Sim. 271 ; 3 Sim. 41. Cox, 339, 340; 4 Ves. 808, 809. » N. Haven B. R. o. Ketchmn, 34 » Cowp. 39 ; 6 Dura, and E. 645 ; How. Prac. Eep. 304. 4 Ves. 809.— » 1 Kent's Com. 477. ** Mastering the lawless science of our law, That codeless myriad of precedent, Digitized by Microsoft® 198 OP ADHERENCE TO ONE DECISION. The future similar case is sometimes expressed to "be literally tlie same case with the precedent . ^ or to fall witMn. it, and to be not distinguishable from it ; ^ or to be directly the same case as it is.* The precedent is sometimes expressed to be a decision pre- cisely, exactly, or directly, in point ; * or such a case, that there is no distinguishing it from the present case ; ® or a case quite similar to the present ; ® or a case, of whicli the facts " cannot be distinguised in effect from those of the present case ;" "^ or a case, " which must govern the present, to whicli it closely ap- plies ;" ^ or a case, " that must govern the present, for it stands directly on the same ground in every word and circumstance." * [It i^ not meant that the facts and circumstances in the case to be decided must be the same as those of the case in which the decision was rendered. It is enough, if they raise the same questions of law ; if they cannot be distinguished in principle ; if the points raised in the latter case necessarily came up to be de- cided in the former, so that it could not be disposed of without passing upon them ; and they were actually passed upon by the court. In other words, it is only essential that the principles necessary to be de- cided, in order to dispose of the latter case, should have been passed upon in the former, not "o5^'fe7•," but necessarily in deciding the case.^" [Ch. Justice Sharswood says : " It is not possible to lay down, with mathematical precision, any rule in ' Dougl. 326, ed. 1783, 340 a, 4th ' 6 Maule and S. 47 ; 9 Bing. 672. ed. « 2 Barn, and Aid. 66. " 8 Barn, and Cr. 798. ' 3 Barn, and Adol. 36. ' 2 Maule and S. 581. " 6 East, 513. * 6 Eaat, 512; 1 Maule and S. 696, " 1 East, 641. 697; 14 Ves. 596; 19 Ves. 314; 1 '» 2 Bing. 229; 6 Gray, 494, 495; YouDge, 22; 2 Anstr. 357. 6 Wheaton, 399. Digitized by Microsoft® OF ADHERENCE TO ONE DECISION. 199 regard to the authority of precedents. How far pre- vious determinations ought to be regarded as definitely settling any point or principle of law will depend very much upon circumstances. The character of the court, and of the times in which such decisions took place, will have its weight ; and not a little, after all, will depend upon the time and tendency of prevailing opinions." ^ [" We ought not," says Chief Baron Pollock, in Edwards v. The Camerons R'way Co.,^ " needlessly to question the recent decision of a court of concurrent jurisdiction." " It is the function of a judge," says Coke, not to make, but to declare the law according to the golden metewand of the law, and not by the crooked cord of discretion." ^ [The reasons assigned for a strict adherence to precedents are many and cogent. [It is said, the law should be certain and stable, else how can it be known; with what safety could lawyers advise, or clients act upon their advice ? what security would there be for vested rights, that often it is of most importance that a rule should be fixed and stable, than that it should be strictly just ? [" Misera est servitas, ubi jus vagum atit incertum" that when a rule has been declared, become well- known, been generally acted up 16 N. y. 222. " U N. Y. 423. " 6 N. Y. 15, 16. ' 20 Wend. 865. = 14 N. Y. 429. ^ See also Maxwell v. Jameson, 2 M9 N. Y. 463. Barn, and Aid. 51, and Burton *. •' 16 N. Y. 249. Barclay, 7 Bing. '761. Digitized by Microsoft® OF ADHEBENCE TO ONE DECISION. 211 V. Pauchard/ it was said by Abbott, C. J., — "That has been already overruled, after two arguments, in the case of Freeman v. West, upon reasons which appear to me to be quite satisfactory ;" and by Bayley, J., " Freeman v. West is a direct authority in point, and the reason of the thing is in favor of that de- cision ;" and by Holroyd, J., " The case of Freeman V. West seems to me to have been rightly deter- mined, and I think it ought to govern our present decision." * • An instance occurs, wherein Lord Hardwicke made a determination, which he believed to agree with a former decision, but ordered the matter to stand over that he might look for the case; and afterwards, on the authority of that case, he decided directly contrary to his former determination.* Mere length of time since the decision of an earlier case does not weaken the authority of it. In Cheet- ham V. Ward, Eyre, C. J., said, — "The very point in issue was decided in the year book ; and Brian there gives a satisfactory reason for the decision. . . . This case must be decided by the year book, and the principle there laid down, which has never been doubted since, whether founded in reason or not." * [In Kightly v. Birch,^ Lord EUenborough, Chief Justice, overruled the case of Bagge v. Bromuel,® say- ing " it had had its day, and it was time that it should cease." And there being no modern authorities for a proposition, is a ground for hesitating as to following it: Thus in Eegina v. Ritson,'' Chief Baron Kelly ' Cro. Jac. 158. ' 2 Maule and S. 223. « 3 Barn, and Aid. 166. ' 3 Levinz, 99. ' Hume V. Edwards, 3 Atk. 693. ' 5 Law Rep. 204 Cr. Cas. Res. * 1 Bos. and P. 630. See also 9 Price, 612. Digitized by Microsoft® 212 ADHERENCE TO SEVEEAL DECISIONS. said: "During the argument I certainly entertained doubts on this question, because most, or, indeed, all, the authorities cited are comparatively ancieiit."] SECTION 11. OF ADHEEENCE TO TWO OE MOEE DECISIONS. As one decision may constitute a binding authority, so by greater reason may it be the duty of the courts to adhere to two, or a greater number of, decisions in point. Instances accordingly occur, wherein two,^ or more,^ decisions have been followed as authority In a case where, in the Court of Chancery, Lord Eldon adhered to a decision by Lord Hardwicke, and another by Lord Apsley, his lordship made these observa- tions, — " It is my duty to submit my judgment to the authority of those who have gone before me; and it will not be easy to remove the weight of the decisions of Lord Hardwicke and Lord Apsley. The doctrines of this court ought to be as well settled, and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circum- stances of each case. . . .1 profess this principle, that if I find doctrines settled for forty years together, I will not unsettle them. I have the opinion of Lord Hardwicke and of Lord Apsley, pronounced in cases • Eoe V. Jones, 1 H. Bl. §0 ; 3 Durn. Ford, 7 Ves. 617 ; Gee v. Pritchard, 2 and E. 88 ; Wright v. Barlow, 3 Maule Swanst. 402, 414, 422. and S. 512; Evelyn v. Evelyn, Ambl. " Doe v. "Wright, 8 Durn. and E. 191; 3Atk. 762; 1 Dick, 146; Steb- 64. bing V. "Walker, 1 Oox, 250 ; Ex-parte Digitized by Microsoft® ADHERENCE TO SEVERAL DECISIONS. 213 of this nature, whicli I am unable to distinguisli from tlie present. Those opinions have been acquiesced in without ♦application to a higher court. If I am to be called to lend, my assistance to unsettle them, on any doubts which I maj|entertain, I will lend it only when the parties bring them into question before the House of Lords." ^ In the King v. Thurmaston, Taunton, J., said, — " In Eex v. Deptford, the judges, who expressed some doubts, still felt themselves bound by the au- thority of Hex V. Framlingham ; and if so, a fortiori, we are bound by the two cases." ^ [There should be strong reasons for overruling previous adjudications, especially where there are several successive decisions, establishing the same doc- trine.* And per Paige, J., in Curtis v. Leavitt :* " It is quite clear that this question ha^ never been fully considered by this court; but inasmuch as it has been expressly determined by the court in two cases, I do not feel at liberty, to disregard the deftermination, although I believe it to be erroneous, for I do not think that the correction of the error will compensate for the mischief of shaking the stability of the de- cisions of the court."] A determination, contrary to former decisions, may often produce the inconvenience of disturbing transac- tions that have taken place on the faith of those decisions;® an inconvenience to which Lord Hard- wicke in 17 54 thus adverted in a case on the Statute of Distributions, and in which he followed two former decisions, the* first of which was made in 1708 : — " I would not be understood, that the argument of incon- " Gee V. Pritohard, 2 Swanst. 414, ' Roane v. Hinton, 1 Eng. R. 525. 422. M5N.Y. 188. » 1 Barn, and Adol. 135. ' 1 W. BI. 264; 3 Bing. 699, 600. Digitized by Microsoft® 214 ADHEEEKCE TO SEVEEAL DECISIONS. venience alone has weight enougli to decide the ques- tion, Ibut it is a reason at least for not unsettling former determinations ; and, if I were to vary in opinion, it would tend to alter distributions made since 1708, and disturb the peace of familie^'^ So with refer- ence to the law, which, as between the heir and executor of a mortgagee, existed on the title to the mortgage money previously to the case of Thorn- borough V. Baker,^ July, 16Y5, Lord Nottingham, in Tabor v. Tabor,^ November, 1679, and adhering to Thornborough. v. Baker, and overruling a decree which, in Tabor v. Tabor, was made "about eleven years since," and consequently before Thornborough V. Baker, thus speaks of the retrospective eflPect of the law settled by this case : " Because this has been long a controverted point, and was never fully settled till my time, as appears by Thornborough and Baker's case, and the precedents then cited, ergo, it is not fit to look too far backwards, or to give occasion for multi- plying suits ; for God forbid, men should search the register's files to find out how many decrees have been made for payment of mortgage money to the heir, and then stir up the executors or administrators to sue the beir for it again."* The same incon- venience of unsettling past transactions attracted the attention of Lord Kenyon in a case where he took occasion to speak of it in the following ener- getic manner: "If," said he, speaking of a particu- lar decision, " that shall be found to be a single case, and that the judges in deciding it departed from those rules that have guided conveyancers for ages » Evelyn v. Evelyn, 3 Atk. 762, • 3 Swanst. 636. "jeS; Ambl. 194. ■• 3 Swanst. 638. ' 1 Ch. Cas. 288 ; 2 Freem. 143 ; 3 Swanst. 628. Digitized by Microsoft® OS" DEPAKTUKE FEOM ONE DECISION. 215 past, then it will be most unfortunate for the public. The maxim, Misera est servitus uhi jus est vagum aut incertum, applies with peculiar force to questions respecting real property. In family settlements pro- vision is made for unborn generations ; and if, bjlHhe means of new lights occurring to new judges, all that which was supposed to be law by the wisdom of our ancestors is to be swept away at a time when the limitations are to take effect, mischievous indeed will be the consequence to the public." ^ SECTION III. OF DEPAETUEE EEOM ONE DECISION. [Geneeal rules can never be laid down accurately at first. Experience only can point out the proper qualifications, limitations, exceptions, and relative bearings.] Hence^ one decision may not be a binding authority, if the principle or reason on which it is grounded, or some other cause, makes it defective. In an after case, the soundness of the earlier decisions may be inquired into, and if on examination it is in the mind of the court thought to be unfit to stand, that decision it is allowed to reject as a binding authority.® A decision may be so disregarded — if it is contrary to reason and common experience, and its effect would be to make confusion in property ; * or if it "outrages all reason and sense;"® or if, it being a ' 8 Durn. and E. 503, 504. Cox, 98 ; 8 Ves. 388 ; 9 Ves. 30, 34 ; = Hammond's Correspondence with 11 Ves. 529, 530; 19 Ves. 314; 2 the Revisers of the Statutes. Crompt. and M. 64. = Vaugh. 383; Hardr. 62; Willes, * Willes, 182. 182, 240; 2 Barn, and Aid. 337 ; 2 ' 11 East, STO. Digitized by Microsoft® 216 OF DEPAKTUKE FROM ONE DECISION. case wliicli turned on tlie construction of the terms of a particular instrument, "the court ought there to have come to a contrary conclusion," " the court there had not adopted the true construction, nor that which was^arranted by the ordinary rules of criticism or language ;" ^ or if the judgment was " founded on a mistake of the law ;" ^ or if it does not appear that, in the case decided, the attention of the court had been directed to a strong authority upon the point,* [" When a single case stands, unsupported, and rests upon an unsound basis, or an erroneous applica- tion of principles, it is better, in the language of an . eminent judge, ' to abandon it than attempt to build upon it.' Perhaps no general rule can be laid down on the subject. The circumstances of each particular case, the extent of influence upon contracts and inter- ests which the decision may have had, whether it be only doubtful or clearly against principle, whether sus- tained by some authority, or opposed to all these, are all matters to be judged of whenever the court is called onto depart from a prior determination. When all this has been done, if no particular mischief is likely to ensue, we believe it to be our duty to decide according to our own convictions of the law." * The court is not absolutely bound by one case if the de- cision afterwards appears to be wrong.^ " If the case is one of novelty^ that is, if it does not accord with the principles which constitute the pre-existing law, or especially if it is in conflict with them, and this is shown by a course of legal reasoning — it is, as a general proposition, not only the right, but the duty ' 1 Barn, and Aid. 880. * Garland v. Rowan, 2 Sme. and M. - 1 Barn, and Cr. i16. 681. = 2 Maule and S. 277. » 1 Bishop's Crim. Proceed. §§ , 1046, 1047. Digitized by Microsoft® OJE" DBPAKTUEE FEOM ONE DECISION. 217 of the court to decide in a way contrary to sucl former adjudication. This is termed, in the language of the law books, ov&i'rulmg the adjudication. And the reason of this is, that a court is always bound by auihoHty^ and authority does not consist of cases, but of principles." ^ " A large portipn of the legal opinion which has passed current for law," said Lord Denman, in O'Connell v. The Queen," ^ " falls within the des- cription of law taken for granted," and, " when in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and restatement of a doctrine — the mere repetition oJ the cantalena of lawyers — cannot make it law, unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle." [In The People v. Vilas,^ the court says : " The case of tJ. S. V. Kirkpatrick, 9 Wheaton, Y20, is in apparent conflict with these views. There may be some distinction between this case 'and that, which does not occur to me. I do not find that case has ever been recognized or affirmed. I cannot consider it sound or practicable in the administration of the affairs of government." As was said by Cowen, J., in Waydell v. Luer,* "Anomalies in the law . . sometimes arise from blindly following the hasty de- cision of a distinguished judge." In Commonwealth V. Wright,® the decisions in the cases of Common- wealth V. Carey,® and Commonwealth v. Parmenter,'' and some other cases were disregarded because " evi- ' Bishop's First Book of the Law, §98. " 11 CI. and Fin. 373, and see per Pollock Ch. B., 2 Hurls. andN. 139. ' 3 Abb. Pra. Eep. 262 N. S. * 5 Hill, 453. ' 1 Cusb. 46. » 2 Pick. 47. ' 5 ^k. 279. Digitized by Microsoft® 218 OF DEPAKTUKE FEOM ONE BECISION. dently decided without mucli consideration," and be- cause " the precise question here raised does not ap- pear to have been suggested to the court," and in Lyon V. Mitchell,^ Justice Hunt, referring to the case of Norris v. The Tool Co.,* said, " I think the case was not well considered, g,nd cannot adopt it as author- ity." And in Oakley v. Aspinwall,^ Justice Comstock says : " A case may easily be put in which a judg- ment would not be authority, either in a subordinate court, or in the one which pronounced it. If, for ex- ample, an appeal to this court involved distinct and separate defences to the action, such as usury, and the statute of limitations, and five of the judges should concur in a reversal, two of them placing their decision on the one ground, and three on the other, the judg- ment might be reversed, but- nothing else would be decided. Such a determination of the appeal would be no authority, even in the same case." In over- ruling Goodman v. Harvey,* the Superior Court of New York remark — " Either the maxim that it is the duty of judges stare decisis must be exploded as groundless, or cases which involve its flagrant viola- tion must be disregarded." The case of Bush v. Steinman,^ after being cited and discussed, through a long series of decisions, sometimes deferred to as "fully supported by authorities, and by well established principles," ® and as frequently mentioned to be criti- cised and doubted, its authority has come to be wholly denied, and it has been said of it — " no case which was once esteemed as authority has been more com- pletely overthrown."^ ' 36 «■. Y. 248. » 1 Bos. and Pul. 404. ° 2 Wallace, 45. » 23 Pick. 24. ' = 13 N. Y. 607. ^ •" Cuflfi). N. and N. Y. R. R. Co., 9 * 4 Adol. and El. 870. Law. Reg. 641 N. S. Digitized by Microsoft® OE DEPAETUEE FEOM ONE DECISION. 219 « [In Sparrow v. Kingman/ the Court of Appeals of New York, in overruling some previous decisions of tlie Supreme Court of that State, said : " The error originated in a dictum of a judge, in an early ease, and has been followed until the present time ; recently, not because the error was not . clearly seen by the judges of the Supreme Court, but for the reason that the rule had been conclusively settled for them by re- peated adjudications of their predecessors. Here, however, the question is not res adjudicata, and we may reject the rule, if unsupported by principle or binding authority. Bronson, J., dissenting, said : " Questionable as I think this doctrine was at the first, it has prevailed too long to be now overturned by a judicial decision. If there is any good reason for changing the rule, the change should be made by the Legislature, and not by the courts."^ The case of Benjamin v. Benjamin * was decided by the Court of Appeals by a manifest oversight of a statute, and when cited in Romaine v. Kinsheimer,* the court refused to be bound by it, saying : " If the error thus shown con- sisted of any thing beyond that of a. clearly mistaken reading of a statute upon a question of ju/risdiction alone, we should not consider it open to review in this court, but would feel bound to adhere to it upon the doctrine of stare decisis. But as no particular prin- ciple of law is involved in that decision, beyond the reading of a particular statute, and as adhering to it would impose upon us the duty of entertaining ap- peals in proceedings where it is clear this court has no jurisdiction whatever, I am satisfied that the doctrine ' 1 N. T. 246. " 6 $r. T. 383. ' See Shoemaker v. Benedict, 11 * 2 Hilton, 521. N. T. 183, 191. Digitized by Microsoft® 220 OF DBPABTUEE FROM ONE DECISION. oi stare decisis has no applicability to" such a case, and does not preclude us from acknowledging so obvious an error, and hereafter disregarding it, as in any way binding."] Chief Justice Willes, speaking of a case, wherein he ■ fancied the reporter was mistaken, made this observa- tion on it — " However, if this had been as Carthew reports, yet it is a single case, it is contrary to reason and common experience, and such a determination would make such a confusion in all the property of the people of this kingdom, that I own I should have no regard to it, but think that the contrary ought to be dedared to be law." ^ And the same learned chief justice has said of a judgment of Lord Harcourt — "As it was a judgment given without any reasons, and directly contrary to the strongest reasons, that he him- self had laid down but about a week before in the same case, it is a case that has ho weight with me, for I will not be influenced by any judgment, that is founded either on fear or favor." ^ In a case where a defendant's gamekeeper had shot a dog of the plaintiff, and the question was, " whether the plaintiff's dog in- curred the penalty of death for running after a hare in another's ground ;" Lord EUenborough forcibly said — " If there be any precedent of that sort, which out- rages all reason and sense, it is of no. authority to govern other cases. "^ Lord Tenterden, characterizing a case as one that underwent grave consideration by the court, which at the time was filled by very learned judges, and adverting to observations made to show that the judgment there ought not to have been given, said, in continuation — " If we could have l)een con- ' Willes, 182. • = 11 East, 570. « "Willes, 240 ; 5 Vin. Abr. 891. Digitized by Microsoft® OF DEPAETUEE FKOM ONE DECISION. 221 vinced that a judgment, given even by persons of the description to vrhich I have alluded, was founded on a mistake of the law, it would have been our duty to have decided contrary to it." ^ In a case before Lord Eldon, his lordship said — " The case of Dick v. Swin- ton is precisely in point ; but I do not say, that there- fore, I should rely upon that authority, if I had any doubt as to the principle." ^ [For " a rule established by a course of adjudications which is in conflict with legal principles — should not be extended." *] A court is at liberty to overrule a case, and accord- ingly instances occur Wherein it has been overruled, although " no case can be entitled to more respect ;" * or it is an authority to which the court looks " with great respect ;" ^ or it is a " most solemn and deliberate - opinion after great consideration,"® or a "deliberate judgment :" "^ or it is a modern case, as one determined sixteen, or eight, years ago.^ Instances of a case, which has been overruled by a later decision, are, amongst others : ' 1. Rees v, Phil- ^ 7 Barn, and Cr. 4*76. Adol. 197 ; Bishop v. Chambre, 1 Dans. " 19 Ves. 314. , and LI. 83, by'jardine v. Payne, 1 " Judson V. Gray, UN. T. 408. Barn, and Adol. 671 ; Milner v. Hor- * Aldrich v. Cooper, 8 Vea. 390. ton, M'Clel. 647, by Smith v. Compton, ' Wallwyn a. Lee, 9 Ves. 34. 3 Barn, and Adol. 189, 199, 200; ° Ex-parte Young, 2 Yes. and B. Eaton v. Jaques, Dougl. 438, ed. 1783, 244. 465, 4th ed., by Williams v. Bosau- ' 2 Rose, 78 n. quet, 1 Brod. and B. 238, 3 Moore, ° Lees V. Snmmersgill, 17 Vea. 508, 600 ; Dickinson v. Shaw, by Dyer v. overruled by Emanuel tj. Constable, 3 Dyer, 2 Cox, 92; Strode v. Black- Euss. 436 ; Milner v. Horton, M'Clel. burne, 3 Ves. 222, by WaUwyn v. Lee, 647, by Smith v. Compton, 3 Barn. 9 Ves. 24; Doddington v. Hallet, 1 and Adol. 189, 199, 200. Ves. 497, by Ex-parte Young, 2 Ves. ° The King v. Eennett, 2 Durn. and and B. 242, 2 Rose, 78 n. ; Lees v. E. 197, overruled by The King v. The SummersgUl, 17 Ves. 508, by Emanuel Brewers' Comp. 3 Bam. and Cr. 172, v. Constable, 3 Russ. 436. And, in 4 Dowl. and Ryl. 492, cited 3 Barn. bankruptcy, Ex-parte Ogilby, or Ogil- and Cr. 175 ; Gelding v. Dias, 10 East, vy, 3 Ves. and B. 133, 2 Rose, 177, by 2, by Ricketts v. Lewis, 1 Barn, and Ex-parte Moore, 2 Glyn and J. 166, Digitized by Microsoft® 222 OF DEPAETUEB FROM ONE DECISION. lip/ Lord EUenborough, C. J., observing, " that it did not appear that the attention of the court had been directed in that case to Co. Litt. 148 b ;" and Bayley, J., saying " that Co. Litt. was a Strong authority upon the point." ^ 2. Bage v. Bromuel,® Lord EUenborough, on, it is not to be doubted, good ground, saying,—, " that the case referred to had had its day, and that it was time it should cease."* 3. Payne v. Hayes,® which, it seemed to Abbott, C. J., could not be sup- ported in point of principle ; a case also which Mr. Justice Buller thought was not to form a rule of decision in future times ; and in which opinion Abbott, C. J., most fully concurred.® 4. Robinson v. Tonge, '' with reference to which Lord Eldon, on the occasion, when he overruled it, said, — " I feel it to be my duty to understand the principle of the case before I confirm it, or to decide against it upon a principle, stated from this place, [Court of Chancery,] so clear, that there can be no doubt upon it. ... I cannot conceive the principle upon which that decision stands. . . . I have had an opportunity of communicating vdth Lord Eedesdale upon this case, and have his lordship's authority to say, that he can reconcile if with no prin- ciple ; that it was as great a surprise upon him, as it was upon me ; and he considers it as a case standing altogether by itself, and not reconcilable to the prin- ciples which govern the court in a great variety of other instances. I have also the full concurrence of cited iSiti, 315; Hankey «. Hammond, * 3 Lev. 99. 1 Coote'a Bank. L. 67, 8th ed. Y8, by ' Kightly v. Birch, 2 Maule and S. M-parte Garland, 10 Ves. 110, 1 633. Smith, 220, and stated from Reg. B. 3 ' Bull. N". P. 145. Madd. 148 n., Buck, 210. ' Wickes v. Gordon, 2 Barn, and ' Wightw. 69. Aid. 335. " Doe V. Meyler, 2 Maule and S. 'IP. W. 5th ed. 680 n. 276. Digitized by Microsoft® OF DEPABTUEE FROM ONE DECISION. 223 Lord Redesdale's opinion, that lie would not determine according to that authority." ^ It is here observable, that a particular doctrine may be law, although the reason, which for that doc- trine is " given in the books," is a bad one.^ And a judgment may be well given, and ought to be affirmed, although the reasons given by the court for that judg- ment may not be approved of.® [The judgment should not be reversed, said Chancellor Walworth, in Han- ford V. Artcher,* because the judge gave an erroneous or insufficient reason for his decision.] A particular decision, although disapproved of, and although a case which " made a noise in West- minster Hall at the time the judgment was given," may, " unless it establishes a rule productive of injustice and inconvenience," be one that ought not to be over- turned, if it is upheld by the circumstances, that it is a decision which was much considered before it was pronounced, has remained unimpeached for more than forty years, and has been confirmed by a later de- cision ; and " whatever conveyancers might have thought of the case, when it was first decided, they have since considered it as having settled the law, and it would be productive of much confusion to unsettle it again." ° Also a particular decision, although originally infirm, may become established law, and the doctrine it contains may be binding, by reason of a known consequence of the decision ; as the circumstance, that "much property has been settled, and conveyances have proceeded upon the ground of that determina- ' Aldrich o. Cooper, 8 Ves. 382, = 1 Stra. SYl. 388, 390, 394. - 4 Hill, 273. ' 1 Durn. and E. 34, [and aee 22 ' 2 Bing. 451. How. Pr. E. 49; 15 Abb. Pr. R. 208.] Digitized by Microsoft® 224 OF DEPAETUEE FEOM ONE DECISION. tion;" a principle on wWcli Lord Camden expressly decided Morecock v. Dickins.^ [" It is easy to see," said Johnson, Chief Justice, in Leavitt v. Blatchford,* " how the point may have es- caped that close attention which it deserved. Under such circumstances, I do not think this court bound to persist in that which it sees clearly to be erroneous. Where a rule of property is erroneously settled, courts will rarely, if ever, depart from the decision, because such a departure will disturb rights acquired under the sanction of the rule ; nor will they determine that to be criminal which has been decided, though errone- ously, to be innocent. The reason of these rules has obviously no application, when the decision sought to be corrected is one which disappoints the expectation of the parties to an act, and renders void their con- tracts. There can have been no dealing between par- ties on the faith of any such rule. To alter such a de- cision does not disturb property nor interfere with any vested rights which the law is to regard ;. on the con- trary, that course gives effect to the intentions of par- ties, and removes an obstacle which ought not to have been interposed in their way. A decision of the char- acter of that in question stands, therefore, upon the general doctrine of stare decisis, unstrengthened by any peculiar considerations founded on the nature of the decision or the unjust consequences which might fol- low from its alteration. -That maxim, although enti- tled to great weight, does not furnish an absolute rule which can never be departed from. That it does not, the number of overruled decisions which have accumu- lated in the administration of the common law, abund- antly proves. To depart from a decision is undoubt- ' Ambl. 681. 2 17 N. Y. S43. Digitized by Microsoft® OF DEPAKTUEE FROM OKE BECISION. 225 edly an act by whicli a court incurs a high degree of responsibility ; and it should certainly be satisfied that its course is such that the future judgment of the en- lightened profession of the law will approve its deter- mination. But when it is satisfied that an erroneous determination has been made, and that, too, without a fall consideration of the merits of the question de- cided : when it sees that to correct it will render void no one's honest acts, nor disappoint any just expecta- tion : when, in short, it is fully persuaded that there is no one reason why such a decision should again be made, except that it was once made before, then I think a court would be sacrificing substance to shadow, if it refused to correct its error. Nor do I believe that by so doing a court would disturb the public confi- dence in the stability of its judgments. Courts are not inclined, any more than men out of courts, to ad- mit that they have erred ; and where the administra- tion of justice is public, and must proceed upon rea- sons assigned for every judgment, there is little danger, from the exercise, under the responsibilities which ne- cessarily attend its exercise, of the power which a court possesses to retrace its steps when it is satisfied that an error has been committed." [Again, in Harris v. Clark,^ Justice Gridley said, — " In opposition to this doctrine, however, the case of Wright V. Wright,^ is pressed upon us as an authorita- tive adjudication which we are bound to follow. We believe in a rigid adherence to the doctrine of stare decisis. We regard it as necessary to preserve the cer- tainty,. the stability, and the symmetry of any system of jurisprudence; and, therefore, if we had any reason to believe that the decision in this case was made upon ' 2 Barb. 101. ' 1 Cowen, S98, 15 Digitized by Microsoft® 226 OF DEPAKTUKE FEOM ONE DECISION. deliberate consideration, and that the adoption of the reasons assigned by the judge was necessary to the de- cision of the questions before the court, we should cer- tainly regard it as an authority binding upon us, and leave the errors, if any there were, to be corrected in the court of last resort. But we do not think the case of "Wright V. Wright entitled to the authority of a judgment upon the point in question. The case itself was a non-enumerated motion, a decision upon which is never regarded as res adjudicata. The disposition of this class of cases is constantly made upon equitable considerations, which address themselves to the dis- cretion of the court ; arid relief is frequently granted upon equitable terms, against the strict legal rights of the parties." [In The People v. Mayor of Brooklyn,^ Justice Brown said, — "The decision in Livingston v. The Mayor of New York,* was given in 1831, and the main point in controversy was, whether the lands taken for the street had not already been dedicated to the public use. Two opinions only were delivered, which relate almost exclusively to this branch of the case. The objection to awarding compensation in benefits to be derived from the improvement, was dis- tinctly taken upon the argument. But the opinion of Senator Sherman barely alludes to it, while that of Chancellor Walworth (entering into no argument arid quoting no authority) assumes, at once, the whole ground of controversy, and speaks of the right to make compensation in benefits, as a well-settled prin- ciple. We look into these opinions in vain for the evidence of that solemn argument and mature delib- eration which, upon the doctrine of stare decisis, should ' 9 Barb. 543. » 8 Wend. 86. Digitized by Microsoft® OF DBPAETUKE FROM ONE DECISION. 227 give to tliis case the weight of authority sufficient to foreclose the judgment of all other tribunals upon the same question. If Mr. Justice Bronson is not clearly right when he says, in Butler v. Van Wyck,^ — " It is going quite too far to say that a single decision of any court is absolutely conclusive as a precedent," he cer- tainly does prove, by reference to numerous cases, that the Court for the Correction of Errors did not abide by its own decisions. I shall, therefore, treat the ques- tion of the validity of the power given to the defend- ants by the 40th section of the act to incorporate the city of Brooklyn, as one that is open and unsettled." [" The only question with me," said Justice Wells, in Parsons v. Monteith,* " is how far we are bound by the case of Gould v. Hill, and whether the maxim stare decisis, in consequence of it, is to govern the pres- ent case. It is the only reported case where this pre- cise question has been decided in that way in this State. No case, that I am aware of, has followed it, affirming the doctrine. Nelson, then chief justice of this court, dissented from the decision. I am disposed, therefore, to think, in view of the great importance of the question and its connection with so large a branch of the commerce of the country, that we ought to take the responsibility of overruling it, providing we think it not in accordance with the settled law of the land." Pn cases of ^^ habeas corpus, it is a well-known rule, that each court is accustomed, and indeed con- siders itself bound to exercise its jurisdiction accord- ing to its own view of the law." ^ And in Doyle v. Russell,* Justice Gould said, — " Were the point settled by a course of decisions, any where ; did it not remain ' 1 Hill, 438. ' He Timson, 5 Law Eep. 261 Ex. » 13 Barb. 359. * 30 Barb. 304. Digitized by Microsoft® 228 ADHBEENOE TO A FIXED DOCTRINE. standing upon a solitary case, whicli is itself not sus- tained by its citations, I migtt feel bound to submit, and to abide by the effect of the doctrine stare decisis, on the ground that what was so well settled must be right, although I might not be able so to see it. But where the liberty of the citizen is concerned, and no hardship is imposed upon the law, by compelling it to see that its own officers are faithful and competent, I think I am justified in saying that the case may go to a higher tribunal for a decision which I cannot see it right to give." [By statute in Indiana, the State reporter is re- quired to append to each volume of his reports a table of the overruled cases contained in it. Most of the volumes of the modern reports contain such a table, and these tables are reproduced in the Digests. The number of overruled and doubted cases in the English and American reports must, at the present time, exceed six thousand, and the number is still increasing.] SECTION IT. OF ADHEEENCE TO A FIXED DOCTKINE. [" The point which has been often adjudged ought to rest in peace." '] When a doctrine is once fixed, as if it be so fixed by a decision, and subsequent practice grounded on it ; * or by several decisions, and the course of practice established accordingly ; * or by " successive determinations ;" ^ or by a strong and uni- ' Cro. Jac. 62T. ' 2 Barn, and Adol. 943. » Ambl. 680, 681 ; 1 Vern. 188. ' 3 Atk. '?63. Digitized by Microsoft® ADHERENCE XO A FIXED BOCTRINE. 229 form train of decisions ; ^ or by "a long series of authority ;" * or by authorities, which, on one side, do in weight, number, and uniformity, very much pre- ponderate over authorities standing on the other side of the question ; ^ the law is, and it is constantly with much force expressed — that, although if the matter were entire,* res Integra, a new case or point,^ it might admit of difficulty, or the judge would have his doubts ; * or although the doctrine is not " founded in good sense," ^ or is not " bottomed in reason," ^ or the court cannot understand the reason on which it is grounded,' or the judge " cannot approve the reasons that others have given, or may not be able to assign a satisfactory one himself;" ^^ or " although the doctrine is not founded upon truly rational grounds, and prin- ciples, but upon legal niceties and subtilty ;" or " not- withstanding one would wish, that no such rule had ever been established, and lament that such nice sub- tilties should have been admitted as the ground of it ;" " or although the rule, when first raised, " went mtis ex arhitrio;'''''^^ or although the series of cases, on which the rule or doctrine is based, were decided " certainly at not a very remote period ;" ^^ or although the doctrine, applied to a particular case, makes it a very hard or unfortunate one ; ^* or whatever may be the coui't's private opinion ; ^^ — yet, the doctrine being ' 1 East, 495. ' 2 Barn, and Adol. 944. » 9 Ves. 433. " 1 Durn. and E. 415. " 9 East, 70. » 1 McClel. and Y. 590 ; Ambl. 11. * 1 East, 493 ; 2 Ves. Jun. 42Y ; 1 "8 Bing. 626, 637, 557. Mylne and K. 186. " 4 Burr. 1960. ' Ambl. 680, 681 ; "Willes, 437 ; " 1 Ves. Jun. 407. Cas. T. Talb. 80; 1 P. TV. 91; 1 " 1 McClel. and Y. 599. McCleL and Y. 590. " Cowp. 192; 7 Dura, and E. 415, 'Ambl. 680, 681; 1 Dick. 227, 419; Willes, 98. 229, 231 ; 1 Ves. Jun. 16. " 9 Bing. 643. Digitized by Microsoft® 230 ADHEKENCE TO A FIXED DOCTKINE. settled, or tlie point closed, it is to be adhered to. ^ ["It is not necessary now to say," observed Lord Kenyon, in Thompson v. Charnock,^ " how this point ought to be determined if it were res integra, it hav- ing been decided again and again." " Influenced by these decisions, I feel myself," said Mr. Justice Keat- ing, in Cockle v. L. and S. E. R'w'y Co.,"^ constrained rather against my own opinions to hold," &c. " We are deeply convinced," said Justice Duer, in Randall V. Parker,* " without meaning to dwell upon the topic, that there can be no stable or consistent administra- tion of justice, unless the decisions of the court of ultimate jurisdiction shall be implicitly followed and obeyed by all subordinate tribunals, and hence those de- cisions, when their grounds are distinctly understood, will always be regarded by us as conclusive evidence of the existing law." ^ A question repeatedly decided is no longer open for discussion.® " Stare decisis,^'' said Chief Justice Spencer, in Lion v. Burtis,'' " is a maxim essential to the security of property ; the decisions of courts of law become a rule for the regulation of the alienation and descent of real estate, and where that rule has been sanctioned and adopted in our courts, it ought to be adhered to, unless it be manifestly wrong and unjust." " It is essential to the security of prop- erty that a rule should be adhered to when settled. ' Willes, 183, 669 ; 4 Burr. 1960, ' 5 Law Rep. 468 C. P. 2564, 2665 ; 1 W. Bl. 264 ; 5 Durn. * 3 Sandf. 72. and E. 63 ; 7 Barn, and Cr. 148 ; 9 ° See, on the inconvenience that Bing. 643 ; 1 Vera. 188 ; Gas. T. Talb. would result from an opposite course, 80; 1 P. W. 91; Ambl. 11; 1 Cox, Yates «. Lansing, 9 Johns. 428; Han- 252 ; 1 Dick. 227, 229 ; 1 Ves. Jun. 1, ford v. Artcher, 4 Hill, 321 ; Driggs v. 407, 408 ; 11 Ves. 537 ; 2 Jac. and W- Eockwell, 11 Wend. 507. 308 ; Jacob, 143 ; 1 Turn, and E. 62 ; 1 » Wright, v. Sill, 2 Black. 544. Euss. 426 ; 1 Mylne and K. 186. ' 20 Johns. 487. » 8 T. E. 139. Digitized by Microsoft® ADHERENCE TO A FIXED DOCTRINE, 231 whatever doubt there may he as to the grounds upon which it originally stood.^ To hold otherwise would be to disturb and unsettle a vast number of titles within the State, which is a consideration entitled to much weight in giving the act an interpretation."* " The doctrine of stare decisis must retain some respect in the courts of this country, or the innovating spirit of the age will render very insecure the rights of persons and property." * " It is dangerous to alter established forms. I will make no order, but leave parties to proceed in the old beaten path." * Via an- tiquas via tuta^] A ground of such adherence is, the inconvenience of uncertainty in the law ; * an inconvenience, which, with regard to property, may affect every man, by the circumstance that " the ablest conveyancers may not be able to direct him." ^ Another reason to adhere to a rule of real property is, that many estates stand or depend upon the rule ; ^ or the danger, that " the new determination should have a retrospect, and shake many questions already settled." ® " Stare decisis is a first principle in the administration of justice, and this not from any fear of bringing appeals or writs of error in particular cases : time guards them : but because these cases have furnished the light, by which convey- ancers have been directed in settling and transferring property from one man to another. Upon the faith of • Sir "W. Grant. 18 Ves. 110. 420; 8 Burn, and E. B04; 1 Taunt "Lynch u. Livingston, 6 N. T. 238, 239 ; 4 Bing. 241 ; 1 Ves. Jun. 17 432. 1 McClel. and T. 590. = CalMns v. Long, 22 Barb. 106. ' *1 Durn. and E. 420. And see 2 * L'd Chan. Talbot, Hunter v. Mur- P. "W. lil. ray, Caa. Temp. Talbot, 196. ' 2 Bro. C. C. 149 ; 9 East, 70, 71. 'Manning v. Manning, 1 Johns. And see 1 Taunt. 239. Chan. 530. " 1 TV. Bl. 264 ; 8 Durn. and E. » WiUes, 437 ; 1 Durn. and E. 419, 504. Digitized by Microsoft® 232 ADHERENCE TO A FIXED DOCTEINE. an established rule, and tlie acquiescence of judges, and of the whole nation in it, property to the amount of millions may depend. The judges now (as their pre- decessors have always done) bow down to the rule pro salute popuU, which is the supreme law of every community." ^ [" But it is not the province of this court," said Justice Wright, in Phillips v. Peters,^ " to unsettle the latter doctrine. When the consequences flowing from unsettling principles established by a long current of adjudications, are so extensive and wide-spread, and it may be disastrous, our plain duty is to be governed by the rule of stare decisis, leaving to the court of last resort to change the law." And, per Baron, Gurney, in Garland v. Carlisle.* " It is part of the infirmity of human legislatures that the general rule which they prescribe, will work hardship in particular cases, and it is for the legislature to afford such relaxation of the rule as can be done with safety." " The question was regarded below as settled by a series of decisions." " If this be so, it is equally binding upon this, as upon any other court." * [" When a rule has been once deliberately adopted and declared," says Chancellor Kent,^ " it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for veiy cogent reasons, and upon a clear manifestation of error ; and if the practice were otherwise, it would be leaving us in a state of uncertainty as to the law." " The rule having so long obtained with us, I do not think the ' By Wilmot, C. J., Wilm. notes, * The People v. Vilaa, 36 N. Y. 312. 463. ' 21 Barb. 859. " 16 Johns., 402 ; 20 id. 722, cited ' 2 Cromp. and M. 63. without crediting its sonrce, 4 Duer, 699. Digitized by Microsoft® ADHEEESOB TO A FIXEB DOCTRIITE. 233 appellant's couBsel has given us any sufficient reason for changing it, especially as the practice at the cir- cuit in this respect has been expressly approved by the Supreme Court in hanco for more than twenty years." ^ [" Under the decisions of the court, vi^hich have been gradually but steadily advancing in that direc- tion, I think," said Peckham, J., in Walsh v. Sexton,* " the proof should have been received, and that the judge erred in rejecting it. . . . In principle I think he vras clearly right. But Lord Hardwicke, at an early day, sought to make a distinction as to a bond delivered without writing, which has been re- pudiated as unsound in principle, but has been steadily followed, and even extended in practice. ... In my judgment, this doctrine is fraught with the great- est dangers. . . . The whole thing is wrong. But it is settled by authority, and we are not at liberty to revft-se it." " If it were not for preserving and uphold- ing the valuable maxim stare decisis, I should have no hesitation in holding that the question . . was one addressed to the discretion of the court." ^ [" It struck me at first," said Lord Eldon, in Gee v. Pritchard,* "as a point of considerable doubt. . . If it was unprejudiced by decision, that doubt might be maintained by strong argument ; but it is too late now even to state it, for there is authority binding my judgment entirely upon that."] Adherence to a fixed doctrine has accordingly taken place in the cases mentioned in the margin,^ '"WafiSe V. Dillenback, 38 N. T. ' Leving tj. Calverly, 1 Lord Raym . 57. 330; Bailiffs of Litchfield -o. Slater, " 55 Barb. 256. WiUes, 431 ; Edmunds v. Povey, 1 ' Cope V. Sibley, 12 Barb. 523. Vern. IST, cited 2 P. W. 494 ; More- *% Swanst. 402. cock v. Dickins, Ambl. 678; Doe v. Digitized by Microsoft® 234 ADHERENCE TO A FIXED DOCTRIUB. In these, the constantly occurring language of the bench is — "If all the authorities are wrong I am bound. . . . Upon the current of authorities, which have expressly decided the point, I think it too clear to be argued :" ^ " So strong and so uniform a train of decisions leaves no room for the court to exercise their judgment on the reasons on which they were founded. . . . The rule sta/re decisis is one of the most sacred in the law :" ^ " It is not a wise administration of justice to oppose a current of author- ities where they are to be found. If we did so, we could not expect that the decisions of the present day would be more binding on posterity ; and the rule of justice would be ever fluctuating, and uncertain. It is much wiser to adhere to prior determinations, al- though we cannot always understand the reasons on which they are grounded :" * " If it had been res in- tegra, I should doubt ; but it is now res judicata ; and stare decisis seems wisest. . . . Authorities eifetab- lished are so many laws ; and receding from them un- settles property ; and uncertainty is the unavoidable consequence. To the maxim of Lord JBacon cited at the bar, that not the decision, but the ground on which Walton, Cowp. 189 (on which case, waite, 2 Ves. Juu. 465, 644 ; Hartley see Pugh ?;. Duke of Leeds, «6j(f, 714;) v. Hurle, 6 Ves. 540; Moggridge «. Goodtitle o. Otway, 7 Dura, and E. Thackwell, 1 Ves. 36, 68; Powis v. 899; Bishop of London v. Ffytche, 1 Burdett, 9 Ves. 428 ; Mills v. Farmer, East, 487 ; Doe v. Manning, 9 East, 19 Vea. 483, 1 Meriv. 56 ; Langham v. 59 ; Leycester v. Lockwood, 1 Maule Sandford, 2 Meriv. 6 ; Fitzgerald v. and S. 527 ; Jee v. Thurlow, 2 Barn. Field, 1 Buss. 416 ; Evans v. Rowe and and Cr. 547, 4 Dowl. and Kyi. 11 ; George, 1 McClel. and T. 577, 12 Brown v. Elton, 8 P. W. 202 ; Spar- Price, 76. row 1). Hardcastle, AmW. 224, 3 Atk. ' By Lord Mansfield, 1 East, 494. 798, 1 Dick. 256, 7 Durn. and E. 416, " By BuUer, J., 1 East, 495. D. ; Broadbent v. Shaw, 2 Barn, and ' By Alexander, C. B., 1 McClel. Adol. 940; Ellis v. Smith, 1 Ves. Jun. and Y. 590. 11, 1 Dick. 225 ; Clennell v. Lewth- Digitized by Microsoft® ADHBEBNCE TO A FIXED DOCTEINB. 235 it stands, is to be regarded, I shall oppose tlie saying of Lord Trevor, a man most liberal in his construc- tions, that many uniform decisions ought to have weight, that the law may be known ; and, to gratify private opinion, established opinions are not to be re- ceded from:"^ "Whatever the private opinion of a judge may be, it is safer to conform to established de- cisions, particularly in the House of Lords ; but if not, yet the errors of great judges, acquiesced in by a suc- cession of judges for a series of years, ought to be ad- hered to :" * " Had it been a new case, I should have doubted ; but the cases and authorities are too strong to be got over. If mischief appear, the Legislature may interpose; but it is too much for the court,"' [In Morewood v. HoUister * is reported the decision of the judge in the Supreme Court, in which he says : " Constituted as this court now is, it becomes all im- portant that we should adhere strictly to the principles of stare decisis, especially as it applies to the decisions of the late Supreme Court, so far as they have settled the law in a given case, and leave it to a higher trib- unal or the law-making power to correct them if they are wrong." " The opinion of the court, in Williams V. N. Y. Cent. R. R. Co.** received the concurrence of six judges of this court, and the rule stare decisis pre- cludes U.S from questioning its binding character as an authority in point."® [" What was said by Chief Justice Kent, in Jack- son V. Blanshan,'^ is peculiarly applicable to this case, "By Lord Hardwicke, 1 Vea. Jun. » By Willes, C. J., 1 Dick. 229, 1 16, 11. The same saying of Lord Vea. Jun. 13. Trevor is cited by Lord Hardwicke, * 6 N. T. 315. Ambl. 227, 228. See Arthur v. Bock- ' 16 N. Y. 97. enham, Fitzg. 233, Cas. T. Holt. 750. ° Keleey v. King, 33 How. Pra. " By Sir E. P. Arden, 2 Ves. Jun. Kep. 45. 474. ' 6 Johns. 54. Digitized by Microsoft® 236 ADHEEBNCB TO A FIXED DOCTErME. viz. : It is important ttat wlieii a question of this kind lias become once settled, it should not be dis- turbed, for it grows into a landmark of property.^ The maxim sta/re decisis and non qttieta movere is, to a certain extent, applicable to the decisions of all courts, particularly of the higher courts of law and equity. But in this court (court of errors), especially where nearly one-fourth of its members are annually changed, and by popular elections, the maxim that it is best to adhere to our decisions, and not to disturb questions which have once been put at rest here, should be per- mitted to have its full effect." ^ [" In Seton v. Low,^ this court decided that articles contraband of war were lawful goods within the meaning of that term in a policy of insurance. . . . • In consequence of this decision, the clause in question was introduced into New York policies In Suckley v. Delafield,* the construction in Seton v. Low was held conclusive." "We are bound to presume that since that decision parties have acted with a full knowledge of the construction given to this clause in policies ; and we should regret exceed- ingly if we were obliged, after the lapse of thirty years, to draw in question its soundness. If ever there was a case in which the court should feel bound by the maxim stare decisis, this is the case. A differ- ent construction now would shock and alarm the con- fidence of the commercial community."* " The current of authorities being thus strong, we must remember that stare decisis is a rule of no inconsiderable impor- tance, if we wish to preserve the stability of judicial ' Moore v. Lyons, 25 Wend. 142. * 2 Caines, 222. ° Driggs V. Eoctwell, 11 Wend. ' Nelson, J. Amer. Ins. Co. <;. Dun' 507. ham, 12 Wend. 466. ' 1 Johns. Cas. 1. Digitized by Microsoft® ADHERENCE TO A FIXED DOOTEINE. 237 decisions, and to relieve the law as mucli as possible from tlie reproach of uncertainty." ^ " The decisions of this (Supreme) Court, while unreversed, always formed the absolute law of the case, and entered with very decisive effect into the body of precedents." . . . "The court, almost always in deciding a question, create a moral power above itself; and now when the decision construes a statute, it is legally bound for certain purposes to follow it as a decree emanating from a paramount authority, according to its various applications in and out of the immediate case." ^ [Where an erroneous principle has been estab- lished by decisions, and individuals accepting it as settled law, have acquired rights ttnder it, the court, after the lapse of many years, will hesitate long before overruling it, believing it better for the error to be corrected by the legislature than by the judicial power, "as all intervening rights would, in that case, be saved, and injustice be done to no one." ^ ["If a case," said Lord Brougham, in Baker v. Tucker,* " has been always supposed to be of one par- ticular feature, aspect, and purport ; and if that being uniformly supposed in subsequent cases to be such, and as such ruled those subsequent cases, it will not do to go back to some critical differences which may be raised respecting the authority of that case, because the law may have been settled. I will not even put it upon a wrong view of what the case was." [When a decision involving the title to real estate, and the construction of a statute, has been announced by a court of last resort, and has become a rule of ' Elwell V. Shaw, 16 Mass. 42 ; re- ' Emerson v. Atwater, 7 Mich. 12, peated in Townsend v. Coming, 23 23. Wend. 443. *14Jur. 771. = Bates V. Relyea, 23 Wend. 340. Digitized by Microsoft® 238 ADHEKENCE TO A FIXED DOCTRINE. property, it will be overruled only for the most cogent reasons, and upon the strongest conviction of its incor- rectness.^ The court refused to overrule a decision regulating the title to property by descent, established by a decision six years previously for the reason: " While we forbear to express any opinion as to the correctness of that decision, if the question were res integra, we are unwilling to unsettle titles which probably rest on its principles."* [The court will not overturn a well-considered decision upon the constitutionality of a law, where valuable rights and interests have become vested under it, although they may consider it to be erro- neous,'"] • So great is the force of decisions which have taken place during a long period, as thirty years, or have otherwise become well established, that, although those decisions are a departure from an act of parlia- ment, the courts are obliged to follow them, notwith- standing their effect is, to an extent, to repeal the act,* or to tend " to render nugatory a most beneficial enact- ment, and to promote rather than lessen those evils, which it was the object of the legislature to prevent.' Those decisions the courts may regret, but cannot overthrow : the only power of the courts is, to stop where they have stopped, and refuse to carry them a step further. " I am," it has been observed by Lord Eldon, " bound to say, that statute [of Frauds, 29 Charles ' Eeichart v. McClure, 23 111. 516 ; " Fisher v. Horicon Iron Comp. 10 and see Rogers o. Goodwin, 2 Mass. Wis. S51. 475 ; Packard v. Richardson, Vl Mass. * Ex-parte Whitbread, 19 Ves. 209, 122, 144; Opinion of the Justices, 3 212; 1 Rose, 299; 1 Wesfs Cas. T, Pick. 517. Hardw. 185; 1 Russ. 689, 597, 698. ' Bennett «. Bennett, 34 Ala. 63, 66. 'Reynolds «. Waring, 1 Yonnge' 850. Digitized by Microsoft® ADHEEENOE TO A FIXED DOCTRIKE. 239 11. c. iii,] must not he repealed by me, further than it has hitherto been repealed by my predecessors, to whose authority I submit."^ A ad on a similar departure from the same statute, it is an observation of Alexan- der, C. B., — " The cases in which the statute has been departed from are now too well established to be dis- regarded; and I can only express my entire concur- rence with those who have declared, that the cases ought not to be carried a step farther. "^ On the same subject there occurs, in Cook v. Rogers, the following passage relative to the Bankrupt Acts, and a debtor's fraudulent preference of a creditor in contemplation of bankruptcy : — " I agree," says Tindal, C. J., " in one observation, which has been made by the counsel for the defendant ; that the whole doctrine of fraudulent preference has arisen rather by the contrivance of courts of law, than on the language of the Bankrupt Acts. . . . And Lord Eldon once stated in the House of Lords, that this was a bold doctrine when first started, and in some degree a fraud on the act of parliament; because, if the act were insufficient in that respect, recourse should have been had to the legis- lature; but that after a course of decisions for fifty years, it was too late to alter the rule. The doctrine, however, has at length crept into the statute law; for in the 6 Geo. IV, c. xvi, § 82, we find certain boTid fide payments protected, ' such payments not being a fraudulent preference.' " ' It may often be difficult to draw the line, at which . it must be considered that a doctrine is settled, or a point closed, and, therefore, to be adhered to ; or to say when it is not too late to review such doctrine or ' 19 Ves. 212. • 7 Bing. 443. » 1 Tounge, 350. Digitized by Microsoft® 240 ADHERENCE TO A PIXED DOCTEINE. point. There may be a time when it is not too late to make that review. " My own personal experience tells me," says Graham, B., " that nothing is more common than that a legal notion, though founded on judicial decisions, may prevail, for a series of years in West- minster Hall, as being the result of decided cases, which at length has been decided to be wrong, and when, so discovered, has been corrected by subsequent determinations. The numerous cases of actions against married women, living separate from thqir husbands, afford instances of this. It has been, held and deter- mined, that a feme covert, living separate from her husband, was liable to be sued as a feme sole, till the Court of King's Bench, in Marshall v. Eutton,^ decided otherwise after great consideration, notwithstanding the former decisions the other way, thereby overturn- ing determinations which had, for upwards of twenty years, been considered as establishing so very impor- tant a point of law. . . . The case of Moses v. Macferlan,* again, was considered law for between thirty and forty years, till the court, reconsidering the grounds of that decision, overruled it altogether, and came back to the true principle, in the case of Mariot V. Hampton,^ where Lord Kenyon and the rest of the court, individually, refused to recognize the law of the former case, although very solemnly determined after mature consideration and an elaborate judg- ment." * [Wain V. Warlters repeatedly disapproved, and particularly in 15 Vesey, 286, was unanimously ' 8 Durn. and E. 545. [We have before {ante, p. 202) referred " 2 Burr. 1005 ; 1 "W. Bl. 219. to the case of Anon., 1 Comyns, 150, ' 7 Durn. and E. 269. whicli was overruled in Allen v. Dun- * 12 Price, 135, 136; 1 M'Clel. and das, S T. K. 125, after it had stood as T. sg"?, 598. See 1 Turn, and B. 100 : law for oyer eighty years.] Digitized by Microsoft® ADHERENCE TO A EIXBB DOOTEIKE. 241 affirmed in Saunders v. Wakefield/ and received for law in England, but not always in the United States.^ ["Even a series of decisions is not alwajj-s con- clusive 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."* Upon this uncertainty in the rule of decision, it has been remarked by a recent writer,* " The hardship caused by the existence of authoritative, but not fully and absolutely authoritative rules, is one which affects all who follow a decision, which is afterwards reversed, the mischief or hardship caused by the want of a power of laying down such rules, is thus left indefi- nite — it introduces a kind of lottery of justice." [" In McMillan v. Vanderlip,^ Chief Justice Spencer reviewed, criticised, and corrected the decisions of the English courts on the subject of part performance of a contract."^ "I have entered into the case so fully, because I am desirous executors should know they are answerable for negligence or inattention to their duty, and that they cannot rely for their protection on the old cases on the subject."^ The old doctrine that the action for money had and received is an equitable action, must be looked on as exploded.® The principle advanced by Littleton and Coke, that a man shall not be heard to stultify himself, has been properly ex- ■ 4 Bam. and Aid. 595. ° Spencer, J., in Moses v. Banker, " Speyers v. Lambert, 1 Swe. 339. Superior Court, N. T. May, 1871. ' Cited in The People v. Mayor of ' Stiles v. Gray, 2 U. S. Law Mag. Brooklyn, 9 Barb. 543. 161. * Considerations on Law, London, ' Miller v. Atlee, 13 Jur. 431, Ex., 1871. 13 Law Times, 121. ' 12 Johns. 165. 16 Digitized by Microsoft® 242 DISOOEDANT DECISIONS. ploded, as being manifestly absurd and against natural justice.^ In Appendix III will be found some extracts from opinions on the propriety of courts, and particu- larly courts of last resort, adhering to their own decisions.] SECTION V. OF DISCOEDANT DECISIONS, OE 8EEIES OF DECISIONS. When two decisions are contradictory, it is per- haps a proper general rule, to adhere in a third case to the later decision.^ But, under some circumstances, the earlier case may be preferred ; as if the latter case is not binding, because it was decided against prin- ciple, or was wrongly decided, or was not argued, or passed without discussion.® And sometimes the au- thority of the first case may be so great, as to oblige the court to yield to and follow it. Thus, in Barnes V. Crowe, which stood over that the court might look into the cases, and particularly Acherly v. Vernon, and The Attorney General v. Downing, the Lord Com- missioner Eyre, on delivering the opinion of the court, commences it by saying, — " Upon looking into those eases, the question, if it is not to be considered as de- termined, and so determined as that the court can hardly consider itself at liberty now to review it, would be a question of great difficulty ; for it seems to me, that those two cases are in direct opposition to each other. The latter was determined by a very able " Webster v. "Woodford, 3 Day, 90; '4 Barn, and Cr. 689. Mitchell V. Kingman, 5 Pick. 431; ' Purcell d. Macnamara, 9 East, 16V. Hill V. Feet, 15 Johns. 603 ; Ballew « Clark, 2 Ire. Law Kep. 26. Digitized by Microsoft® DISCOEBANT DECISIONS. 243 judge in this court, and having the former before him, which increases the dijKculty: but it seems to me, upon the best consideration, that the former case is so determined, and is of such authority, that every thing must yield to it. Therefore, unless it can fairly be dis- tinguished, notwithstanding the great authority of the other, the point must be considered as decided by the first. That was a case of the highest authority, be- cause it was originally determined here, by Lord Mac- clesfield, and his decree was affirmed by the House of Lords, after questions put to all the judges." ^ When a uniform course of recent decisions differs from other decisions which have gone before it ; as a general rule, it appears to be the duty of the courts, to adhere to, and not to alter, those recent cases.** In a case on marshaling assets to pay charity legacies, the Lord Commissioner Ashhurst said, — " He thought they [the Lords Commissioners] were bound by the recent cases, with respect to the question of marshaling ; that it did not appear what was the reason of the turn in the cases, but as the decisions had taken that course, they could not alter them." ^ [" In this conflict of de- cisions we must yield," said Ingraham, J., in Burke v. Valentine,* " to the weight of authority." [It is said, in Claflin v. Wilcox,* that the courts in England, " as all courts ought to do, seem to fasten more upon the general current of the authorities — the principle evolved from all the cases, so to speak — than upon the peculiar facts of any particular case."] ■ 1 Ves. Jnn. 495 ; 4 Bro. C. C. 1, 8. wards, 1 Tounge and J. 19, 21 ; Balme ' Doe V. Webb, 1 Taunt. 234, 238 ; v. Button, 1 Crompt. and M. 262, 266, Tte King v. Ossett-cum-Gawthorpe, 4 272, 281, 282, 303, 304, 306, 308, 313, Barn, and Adol. 222; Tabor v. Tabor, 322, 9 Bing. 471. 3 Swanst. 636 ; Makeham v. Hooper, 4 " Makeham v. Hooper, above. Bro. C. C. 153; Evans v. Eowe, 1 Mc- < 5 Abb. Pra. Rep. 170, N. S. CleL and Y. 677, 595 ; Gascoyne v. Ed- ' 18 Vermont, 610. Digitized by Microsoft® 244 DISOOBDASTT DECISIONS. Decisions sometimes differ in a way, that this duty of adhering to the recent cases may not be imposed on the courts. The precedents may so differ, that the courts may be obliged to overrule one class or another of them, and consequently be driven to a choice be- tween them.^ To such a state of the cases appears to refer this observation of Lord Kenyon : — " If the prece- dents clashed, and we were bound to overset one class of cases or another, I should be disposed to over- turn those, that do not coincide with the reason and justice of the case."^ And in a late most important case before the House of Lords, Vaughan, B., referring to the particular question, said, — " Upon this question the crown, as representing the public, in respect of the revenue, and an individual creditor, in right of his pri- vate claim, are at issue. For the subject, the cases of Uppom V. Sumner, and Rorke v. Dayrell, and for the crown. The King v. Wells and Allnutt, and The King V. Sloper and Allen, are relied upon as conclusive ; and your lordships are constrained to elect by which of these decisions you will abide, for no sophistry of ar- gument can reconcile them." ^ [" I am familiar enough with the antinomies of our jurisprudence," said Sena- tor Verplanck, in Durant v. Supervisors of Albany,* to smile incredulously at the attempts so often made to reconcile contradictory decisions, and vindicate judicial infallibility." And Mr. Justice Carr, in Watkins v. Crouch,^ concludes his judgment as thus, — "it will be observed that I have cited no cases in support of this opinion — not that I have not read and considered and ' Giles V. Grover, 9 Bing. 128, 175, '' Higga v. Warry, 6 Dura, and E. 188, 203, 232, 279 ; The King v. Ossett- 655. cumGawthorpe, 4 Barn, and Adol. ° Giles v. Grover, 9 Bing. 203. 216; 1 Nev. and Man. 21. * 26 Wend. 81. ' 5 Leigh, 530. Digitized by Microsoft® DISCORDANT DECISIONS. 245 puzzled myself with tlie multitude that were com- mented on in the argument ; but because, finding them like the Swiss troops, fighting on both sides, I have laid them aside, and gone upon what seems to be the true spirit of the law." " There is, we confess, a con- siderable want of harmony in the decisions, nor shall we deny that there are some which must be rejected as wholly anomalous, if the law is ever to be settled in conformity to the views which we have expressed ; but it is when the law has been rendered uncertain by the confl^ict of decisions, that it becomes emphatically the duty of judges to recur to those first principles of jus- tice which lie at the foundation of positive law, and by the application of which its existing uncertainty may, generally speaking, be effectually removed. The law (in the beautiful language of Lord Mansfield), ' works itself pure' by the fresh streams which it draws from its original fountains of equity and reason." ^] When late decisions have introduced a practice, which is contrary to all the former determinations on the subject, it may sometimes not be too late to review flhose late decisions, and see whether or not they are sup- ported by principle. It may be allowed to recur back to the ancient practice, if the late decisions " proceeded on a mistake," if " the reason given for the late de- cisions is not a satisfactory one," " is not true ; " and, by adhering to the modern practice, the court would " establish an inconvenient and an unjust rule, and would act against principle, and against all the author- ities, except the late decisions." ^ [In Pell V. Ulmar,^ the Court of Appeals dis- ' Suydam v. Jenkins, 3 Sandf. S. C. ' Mayor of Southampton v. Graves, Bep. 626. 8 Durn. and E. 590. ' 18 K.Y. 139. Digitized by Microsoft® 246 DISCORDANT DECISIONS. regarded a previous decision of the same court. Olstead v. Elder/ in no wise distinguishable in its facts, but because " we think it (the former decision) ought not to overrule our strong convictions of the correctness of the principles above laid down." [Where there is a decision which stands alone, and is in conflict with a number of decisions, the single decision may be disregarded. Thus, in Cole v. Jessup,^ Justice Selden remarked : " There is but a solitary decision, aside from that now under review, upholding the negative of this question, viz.. Dorr v. Swartwout. But that case is in direct conflict with Didier v. Davison, Ford v. Babcock, and Burroughs v. Bloomer. I have no hesitation, therefore, in adopting the construction, in this respect, given to the statute in the three cases last referred to, rather than that adopted in Dorr v. Swartwout." [Lord Kenyon, in Porter v. Bradley,^ doubted the soundness of the rule laid down in Forth v. Chap- man ; * but Lord Eldon, in Crooke v. De Vandes,^ said that Lord Kenyon's dictum, in Porter v. Bradley, went to shake settled rules to their very foundation, anS that the decision in Forth v. Chapman must be supported. [" The decisions of the late Supreme Court on the question now under consideration, have not been uniform, and we are at liberty to adopt such rule as we think the law requires, without a material de- parture from the principle ^ stare decisis.'' Notwith- standing the change which has taken place in the organization of this court, we feel every disposition > 5 N. Y. 144. •• 1 p. Wms. 664. " 10 How. Pra. Rep. 52'7. " 9 Vea. 203. = 8 T. E. 143. Digitized by Microsoft® DISCOEDANX DECISIONS. 247 to abide generally by tlie decisions of our predecessors ; both from the high respect which we entertain for their judicial character, and from our regard for the principle. But the ablest and best men may err ; and if we occasionally overrule an extreme case, we but follow the example of those who have gone before us." ^ " The mind, conscious of rectitude, has to us a higher charm than consistency of adjudication." ^ If either of those cases, said Miller, J.,^ can be considered as deciding the question now before us, then " I think they are in conflict with the decisions of this court, as well as sound principles, and must be disregarded."] ' The People v. Judges of Dutchess ° Craigh v, Rochester City E. R, 39 Morris v. M'Cullock, Ambl. 432 ; ° Boothman v. Earl of Surrey, 2 2 Eden, 190. Durn. and E. 10. " Broun cker v. Scott, 4 Taunt. 1; ° Firebrass v. Pennant, 2^118. 254 Capel v. Buszard, 6 Bing. 150; Jesus ' Demandray v. Metcalf, Prec. Ch. College v. Bloom, Ambl. 64 ; 3 Atk. 419. 262 ; NoTOsielski v. Wakefield, 17 Ves. ' Rose II. Page, 2 Sim. 471. 417 ; Muagrave v. Medex, 19 Ves. 652; " Dearie v. Hall and Loveridge v. Sampson ti. Sampson, 2 Ves, and B. Cooper, 3 Kuss. 67, 58. 337. " Scott V. Soholey, 8 East, 467. Digitized by Microsoft® DECIDING TSTEiW OASES. 275 that an appointment executed by an infant, under a power over real estate, is not good ; ^ or that money, which a person has a power to raise by appointment by deed or will, and which power he does not execute, is not assets for his debts ; * or that an action is not maintainable by an administrator for a breach of promise of marriage made to the intestate by the de- fendant, in a case where the declaration does not contain any allegation of special damage.^ Against the making of a particular precedent, it is often a " good argument," * or " strong argument," ® or " strong circumstance,"* and sometimes a " sufficient objection," "^ that the demand, point, action, or proceed- ing is a novelty. " The novelty of the demand also is against it."^ Judicial expressions like to this con- stantly occur.' Such novelty seems, however, gener- ally speaking, to be " but an argument." ^° This argument or objection in the new case is noticed by Littleton, who, with regard to a particular question on the Statute of Merton, mentions, that " it seemeth to some," that "no action can be brought upon this statute, insomuch as it was never seen or heard that any action was brought ; and if any action might have been brought for this matter, it shall be intended that at some time it would have been put in use."" On this passage. Sir E. Coke observes, — ' Hearle v. Greenbank, 3 Atk. 709, ' 4 Taunt. 3; 2 Ves. and B. 340. 717; 1 Ves. Sen. 304. See 9 Ves. 472. " 1 Jac. and W. 132. = Holmes v. Coghill, 7 Ves. 499 ; 12 ° 2 Eden, 61 ; 3 Durn. and E. 53 ; Ves. 206, 216. 2 Maule and S. 415; 2 Bos. and P. 'Chamberlain v. Williamson, 2 NewEep. 165; 4 Taunt. 3; 7 Taunt. Maule and S. 408. 533 ; 6 Bing. 161 ; 8 Vea. 252. * Cro. EUz. 521 ; Willes, 51. '° WUles, 472. " DougL 442, ed. 1783, and 459, " Litt. § 108, cited 1 Co. 87 b, 2 4th ed. Lord Raym. 944, 957, and 6 Mod. ' 1 Swanst. 89. 47, 66. Digitized by Microsoft® 276 DECIDING NEW CASES. " Hereby it appeareth how safe it is to be guided by judicial precedents, the rule being good, Periculosium exisUmo^ quod honorum virorum non comprohatwr exemplo. And as usage is a good interpreter of laws, so non-usage, where there is no example, is a 'great intendment that the law will not bear it."^ Chief Justice Willes assents to this opinion of the great commentator, saying, — "It was rightly said, as the rule is laid down by Lord Coke, that where a thing has never been done, it is a strong argument that it ought never to be done;" an assent, however, which the learned Chief Justice expressly qualifies by adding, " but it is but an argument." * Little- ton's text was relied on by Powys, J., in Ashby 'v. White, where he said, — " This action is not main- tainable for another reason, which, I think, is a weighty one, viz., this action is primm impressionis ; never the like action was brought before ; and there- fore as Littleton uses it to prove that no action lay on the Statute of Merton, for if it had lain, it would have sometimes been put in use : so here." And he adds, — " So in the case of Lord Say and Seal v. Stephens, Cro. Car. 142, for the law is not apt to catch at actions."^ In the same cause of Ashby v. White, which, it is ob- servable, was an action on the case, Powell, J., and Holt, C. J., differed from Mr. Justice Powys; the former saying, — " As to the novelty of this action, I think it no argument against the action ; for there have been actions on the case brought, that had never been brought before, but had their beginning of late years, and we must judge upon the same reason, as other cases have been determined by."* And in the same ' Co. Litt. 81 b. =2 Lord Raym. 944; 6 Mod. 47. " Willes, 471, 472. ■• 2 Lord Raym. 946 ; 6 Mod. 48. Digitized by Microsoft® DECIDING NEW OASES. 277 case, Holt, C. J., observed on the opinion, mentioned in Littleton, that no action lay, because none had ever been brought, — " Indeed that is an argument, when it is founded upon reason, but it is none, when it is against reason," And on the opinion in Littleton he adds, — " This saying has no great force ; if it had, it would have been destructive of many new actions, which are at this day held to be good law. The case of Hunt and Dowman ^ was the first action of that na- ture, but it was grounded on the common reason, and the ancient justice of the law. So the case of Turner and Sterling.* Let us consider wherein the law con- sists, and we shall find it to be, not in particular in- stances and precedents, but on the reason of the law, and ubi eadem ratio, ihi idenijusP^ The learned chief justice then refers to several cases,* where the action was the first " of that nature, but the novelty of it was no objection to it." ® The causes, so referred to by Chief Justice Holt, were actions on the case ; and it is certain that an ob- jection to a case, on account of its novelty, may fre- quently not be applicable to a special action on the case.® In Winsmore v. Greenbank, which was an ac- tion on the case, Willes, C. J., in reply to an objection taken by the defendant, said, — " The first general ob- jection is, that there is no precedent of any such action as this, and that therefore it will not lie ; and the ob- ' Cro. Jac. 4'?8. ' 2 Lord Raym. 95V ; 6 Mod. 56. ' 2 Lev. 50, 1 Ventr. 206, 2 Ventr. " Ashby v. White, 2 Lord Eaym. 25. 938, 946, 95T ; 6 Mod. 45 ; cited 2 Wils. ' 2 Lord Eaym. 957 ; 6 Mod. 56. 146 ; Chapman v. Pickersgill, 2 "Wils. * Morse v. Slue, 1 Ventr. 190, 238; 146; Pasley v. Freeman, 8 Durn. and Smith V. Crashaw, Cro. Car. 16 ; Her- E. 63.-4 Burr. 2345. ring V. Finch, 2 Lev. 250; Bodily v. Long, 15 Car. II, C. B. Digitized by Microsoft® 278 DECEDIKG NEW CASES. jection is founded on Litt. § 108, and Co. Litt. 81 b, and several other books. But tbis general rule is not applicable to tbe present case : it would be, if tbere bad been no special action on the case before. A spe- cial action on tbe case was introduced for this reason, tbat tbe law will never suffer an injury and a damage witbout a remedy ; but there must be new facts in every special action on the case."-^ On novelty being an objection to a case, the fol- lowing judicial opinions occur in some modern in- stances of different kinds : ^ — " An argument which has been made use of is, that this is a new case, and that •there is no precedent of such an action. Where cases are new in their principle, there I admit that it is ne- cessary to have recourse to legislative interposition in order to remedy the grievance ; but where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case, which may arise two centuries hence, as it was two centuries ago ; if it were not, we ought to blot out of our law books one fourth part of the cases, that are to be found in them : " ^ " It may be true that a similar action in spe- cie is not to be found in any law book ; and I admit, that if the case were new in principle, it would be ne- cessary to apply to the legislature, and not to a court of law ; but where the case is one new in the instance) and the question is upon the application of a principle recognized in the law to such new case, it will be just as competent to courts of justice to apply the principle to a case which may arise two centuries hence, as it ' Willes, 580. = By Ashhurst, J., Pasley i). Free- ' See also Willes, 51. man, 3 Dum. and E. 63. Digitized by Microsoft® DECIDING NEW OASES. 279 was two centuries ago. This is the very nature of an action on the case." ^ [In a case in Gouldsborough, p. 96, one of the counsel said that he had searched all the books, and " there is not one case," &c. ; to which. Chief Justice Anderson responded, — " What of that ? Shall not we give judgment because it is not adjudged in the books before ? We will give judgment accord- ing to reason ; and if there be no reason in the books, I will not regard them." And per Campbell, Lord Chancellor, in Lynch v. Knight,* — " Though a case is of first impression, if it shows a concurrence of loss and damage arising from the act complained of, the ac- tion will be maintainable."] On making a precedent, it may sometimes be the duty of the court to make it " upon great considera- tion ; " ^ and before making it, it may be its duty, in some instances, to deliberate for some time on the question, and, for that purpose, to cause the case to stand over.* On a new point in the Court of Chan- cery, it may be the duty of the court to cause it to un- dergo " a solemn determination ; " and, if it is a legal question, to make a case, and send it to the judges to have their determination upon it.® In other instances there may be small doubt on which side to make the precedent; as in cases where the court has said,^ — " This is a new case, and no case has been cited. I am of opinion the plaintiff's equity is so strong, that I will make a precedent : " '' "I have not the least doubt on this case ; and if there is no precedent of such a de- • By Park, J., 1 Taunt. 518. And » 3 Atk. 654; 1 Atk 184 ; Ambl. see 3 Bing. 550. 322, 168. ' 2 Ho. of Lords Cas. 611. « See also 1 P. W. 128 ; 4 Ves. 809 ; ' 1 Ves. 586. and 1 Ves. and B. 223, 224. *8 Bast, 483; 6 Taimt. 669; 2 ' Ambl 198, and ed. Blunt, 809 ; 2 Maule and S. 414. Kenyon, 34. Digitized by Microsoft® 280 DECIDING NEW CASES. termination as I shall make, I Lave no scruples to make one, and shall glory in doing it."^ ["Every precedent," said Lord Chancellor EUesmere, "must have a beginning. Why may we not make precedents as well as those who went before us." ^ And by Le Blanc, J., in Berkley v. Presgrave,^ — "Unless it be shown by authority that the action does not lie, we must presume that it does, upon the common principle of justice, that where the law gives a right, it also gives a remedy."] The conclusion of this chapter may be considered a fit place, in which to notice the following, among other,* observations of Sir Edward Coke, on " new and subtile inventions in derogation of the common law."^ "The wisdom of the judges and sages of the law have [has] always suppressed new and subtile inventions in derogation of the common law."* "In these last three sections, our author [Littleton, §§ 721, 722, 723,] hath taught us an excellent point of learning, that when any innovation or new invention starts up, to try it with the rules of the common law (as our author here hath done ;) for these be true touchstones to sever the pure gold from the dross and sophistications of novel- ties and new inventions. And by this example you may perceive, that the rule of the old common law being soundly (as our author hath done) applied to such novelties, it doth utterly crush them and bring them to nothing; and commonly a new invention doth offend against many rules and reasons (as here it ap- peareth) of the common law, and the ancient judges and sages of the law have ever (as it appeareth in our ■ Ambl. 434; 2 Eden, 193. '1 East, 229. ' 1 Burnett's Hist, of His. Times, * Co. Lltt. 282 b, St9 a. 671 ; 12 Coke, lib; 3 Wynne's Euno- ' Co. Litt. 282 b. mus. 111. ■ • Ibid. Digitized by Microsoft® DECIDING NEW OASES. 281 "books) suppressed innovations and novelties in tLe beginning, as soon as they have offered to creep up, lest the quiet of the common law might he disturbed." ^ In a modern case, Tolputt v. "Wells, an agreement made by the defendant, an executrix, with certain cred- itors of her testator, and a judgment obtained in pur- suance of such agreement, could not be sustained; it being characterized by Lord Ellenborough as " a fanci- ful attempt to introduce a novelty in the established law relating to executors ; " and Grose, J., saying, " I cannot think this agreement can be supported as pleaded. It is, in reality, a fanciful attempt at nov- elty ; and nothing more clearly shows it than this, that there is no instance of such a form of pleading." * [When the liability of provisional committeemen, which was a new subject, came to be dealt with within, the last quarter of a century, the judges at first all assumed that a provisional committeeman was on the footing of a partner, and it took many years of misdi- rected litigation before it occurred to an eminent judge to question the analogy altogether, and the House of Lords at last ultimately settled that it was a false anal- ogy which had been at first adopted and acted upon.' [In Abrey v. Crux,* Willes, J., says, — " I do not see why we should not, in a novel case to which no distinct law is applicable, rather follow the justice of the case, than strive to bring the case within a prin- ciple which will defeat justice." [What Lord Chancellor Cottenham said in Taylor V. Salmon,® applies, perhaps, to all courts : — " I think ' Co. Litt. 379 b. of the law, House of Lords, 12 June, = 1 Maule and S. 394. 1863. ' Lord Westbury upon a revision * 6 Law Rep. 44 C. P. • 4 Mylne and Craig, 184. Digitized by Microsoft® 282 DECIDING NEW OASES. it the duty of this court to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily mak- ing in the affairs of men, must continually arise, and not from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice and to enforce rights for which there is no other remedy."] Digitized by Microsoft® CHAPTER XVIII. OF ESTIMATESra AUTHOEITIES.^ Sec. I. Of the Comparative Value of Certain Authoritiea. n. Of Circumstances, which may increase the Value of an Authority. III. Of Circumstances, which may lessen the Value of an Authority. SECTION I. OF THE COMPAEATIVE VALUE OF CEKTAIN ATJTHOEITIES. [A DECisioiir of a court is evidence of the law, " and this evidence is stronger or weaker, according to the numter and uniformity of adjudications, the unanimity or dissension of judges, the solidity of the reasons on which the decisions are founded, and the perspicuity and precision with which these reasons are expressed. The weight and authority of judicial decisions, depend also, on the character and temper of the times in which they are pronounced. An adjudication, at a moment when turbulent passions or revolutionary jfrenzy prevail, deserves, much less respect, than if it were made at a season propituous to impartial inquiry and calm deliberation." *] Generally speaking, a judgment given by the House of Lords is of greater authority, than is a judgment given by a Court of Westminster Hall. Sir W. Grant, citing a case in Brown's Parliamentary Reports, ob- served, that, being before the House of Lords, it must ' On estimating dicta expressed on " Piatt, Senator, Yates v. Lansing, 9 the Bench, see also chapter v. Johns. 415. Digitized by Microsoft® 284 ESTIMATING AUTHOEITIBS. supersede the authority of every other case.^ So, Lord Eldon, mentioning Travis v. Oxton,* a decision by the House of Lords, and Bennet v. Eead,* decided by the Court of Exchequer, says, — " The doctrine of Travis v. Oxton, if different from that of Bennet v. Read, though the latter is the more recent decision, must prevail, since it has the authority of the House of Lords." And again, "Bennet v. Read, if not distinguishable, from Travis v. Oxton, though later, cannot prevail against it, in opposition to the authority of the House of Loi'ds."* In Kettle v. Townsend, one devised a copyhold estate to his grandson, and Lord Somers decreed that equity ought to supply a surrender in his favor. But the House of Lords reversed this decree, holding that equity ought not to supply the surrender.^ Of this reversal many judges have expressed their disapprobation.® Thus, counsel having observed that it had been decreed in the House of Lords, that they would not supply the want of a surrender in case of a devise to grandchildren. Sir John Trevor, M. R., an- swered, " that it was his opinion, such a devise of a copyhold, without a surrender, ought to he made good for grandchildren, as well as children ; and if the same case were to come now into the House of Lords, it would be so ruled, and that he had, and would decree it so." ^ And it appears that the like was also declared by Lord Harcourt.^ Of Kettle v. Townsend, Lord Loughborough speaks in these terms: — "I have no difficulty in saying, I think of that determination of the House of Lords, as Lord Harcourt and other judges ' 1 Yea. 847. ' 1 Salt. 181 ; Anon. 2 Freem. 19T, ' 1 Anstr. 308 n, 7 Bro. P. 0. ed. very probably S. C. Toml. 49. • 8 Bro. C. C. 231. '1 Anstr. 822 n. ' 1 P. W. 61. 'SSwanst. 162, 166. "Ibid. Digitized by Microsoft® ESTIMATING AUTHORITIES. 285 have done. . . , Upon the journals of the House of Lords, it appears no one was present upon that occasion, who could know much of the matter ; it was not determined by lawyers ; and Lord Harcourt speaks of it certainly as not such a decision as he would fol- low ; and one or two other judges have not treated it with much respect."^ In Perry v. Whitehead, how- ever, where the bill prayed that the want of a surren- der might be supplied in favor of grandchildren, Lord Eldon held himself to be bound by Kettle v. Town- send ; his lordship saying, " I feel great difficulty in hearing this cause. The question with me, adopting all the sentiments of the great persons named, as far as they go, with due submission to that court, which has a right tn bind me and them, is, whether I can set up my judgment against a judgment of the House of Lords. A rule of law laid down by the House of Lords cannot be reversed by the chancellor; though if there is any difference from a circumstance, that was not before the House of Lords, the cause may be decided upon that. . . . The rule of law must remain till altered by the House of Lords.'"* The authority of a decision by the House of Lords is farther shown by the circumstance, that, in disclaim- ing a power to alter a particular doctrine, a judge commonly says, if the doctrine is to be altered, it must be altered by the House of Lords ; ^ and is also shown by the circumstance, that a judge frequently expresses a wish that a case be decided in the House of Lords,* and often puts it in a course to go there.* The following opinions occur on the binding force ' 5 Ves. 566. * 1 Eden, 414 ; 1 Enas. and M. 276, " 6 Ves. 544, 547, 648. 483. ' 6 Vea. 548 ; 1 Turn, and E. 347. ' H Ves. 667 ; 1 Turn, and B. 26 ; 1 Tounge and J, 249; 12 Price, 6. Digitized by Microsoft® 286 ESTIMATING AUTHORITIES. of the judgments of the House of Lords. — Best, C. J. delivering in that House his opinion on certain" ques- tions submitted to the judges, observes, — " Although the Courts below will not impugn your lordships' judgments in cases ad, idem^ yet they do not hold that they are bound, by them beyond the point actually decided. The courts below truly say, we cannot know that the House of Lords would carry this determina- tion further than they have carried it." ^ And Lord Eldon, remarking in the House of Lords on an obser- vation that had been made, says, — " As to an observa- tion made with respect to the case of the feoffees of Heriot's Hospital, that the judgment of this House in that case was one to be obeyed, not to be followed, I must take the liberty to say, that this would be a course which, if pursued, would call for some atten- tion. For, although every court may say, that, if a case varies in facts and circumstances, it is at liberty to proceed upon these different circumstances, I do not recollect that it ever fell from a judge in this country, that he would obey the judgment of this House in the particular case, but not follow it in others. That is not a doctrine to which we are accustomed." * A judgment of a court of error, which has reversed that of the court below, is, as authority, superior to the latter. Parke, J., delivering his judgment in Grar- land V. Carlisle, a case in the Exchequer Chamber, observes, — " The present case is precisely similar, as to the principal question, to that of Balme v. Hutton,' recently so much discussed and considered in the Courts of Exchequer and Exchequer Chamber; in ' 3 Bing. 569. « 2 Crompt. and J. 19; 1 Crompt. " 6 Dow, 112. and M. 262. Digitized by Microsoft® ESTIMAXING AUTHOEITIBS. 287 whicli all the authorities were reviewed, and the deci- sion of the former court was reversed by the all but unanimous opinion of the latter ; and by the court of error this action was held to be maintainable. I must own that it appears to me, that, even if a different opinion might have been maintained before that case, we must conform to that decision, if we are to treat the present case in the same way that others have hitherto been treated. In our system of judicature, we are bound by precedent, and the authority of previous cases, unless they are plainly and manifestly founded upon erroneous principles ; and that for the wise purpose of securing a reasonable degree of cer- tainty in our judicial proceedings. We have here a direct authority, in addition to a great number which existed before, upon the very question ; a solemn judg- ment of a court of error, which has reversed that of the courts below, and, whatever respect we may feel for the judges of that court, has thereby, for the pres- ent at least, deprived that judgment of its authority as a guide in similar cases. We are not in the situa- tion of being obliged to weigh the conflicting decisions of two different yet equal courts against each other, and of contrasting the arguments in favor of each ; but wg are bound to consider the judgment of one court as annulled by the superior authority of the court of error, and to treat it as being wrong in point of law, until the highest tribunal in the country shall have pronounced a different opinion, or unless the judgment of reversal should appear, beyond all reasonable doubt, to have proceeded on wrong principles, which, it is quite impossible to predicate in the present instance. If we do not adopt this course, no decision, except that of the House of Lords, can be safely relied upon as an authority by practitioners in advising their Digitized by Microsoft® 288 ESTIMATING AUTHORITIES. clients, or judges in pronouncing an opinion upon questions of law. Upon this ground, thougli I had entertained never so strong an opinion in favor of the decision of the Court of Exchequer, I should have felt bound to defer to the judgment of a superior court, and to act in conformity to it in other cases ; but, if called upon to advise the House of Lords on a writ of error, I should have undoubtedly considered myself at liberty to express the opinion which I entertained, without giving the same weight to the particular judg- ment under review." ^ A judgment given by a court of Westminster Hall, and sitting in bank, exceeds in authority a judicial opinion of, or point ruled by, a judge sitting in a court of nisi prius? Thus, Lord Kenyon, speaking of a decision in bank, and two subsequent cases at nisi prius, and applying them to the point before him, says,-^"Thi8 point came under the consideration of the court in the case reported in Wilson, and I think that that case was properly decided. Then it was urged, that two cases have been since determined at nisi prius the other way ; but they were only decisions at nisi prius, where, perbaps, the subject was not so well considered, and they cannot outweigh the author- ity of the case in Wilson." ' Between a judge's different opinions given at nisi prius and in bank, the one delivered in bank is entitled to preference. Buller, J., speaking of certain determi- nations by Lord Mansfield, observes, — " I hope to show that there has been no inconsistency in any of his de- terminations ; but, if there had, if I could not reconcile > 2 Crompt. and M. 64. ' 2 Durn. and E. W; 7 Dura, and E. 85. » 1 Durn. and E. 834. Digitized by Microsoft® ESTIMATIKG AUTHORITIES. 289 an opinion wMcli he had delivered at nisi prius with his judgment in this court [King's Bench in bank,] I should not hesitate to adopt the latter in preference to the former." ^ The value set on nisi prius opinions is, generally- speaking, small. This fact, and some reasons for it, are to be gathered from the terms in vrhich the judges very commonly speak of those opinions. These terms, amongst others,^ are : — " The case in Lord Raymond, though before an eminent judge, vras only a nisi prius decision. . . . At most, it is only an opinion de- livered at nisi prius .•" ' The case tried before Mr. Justice "Wilson "was only a determination at nisi prius ; and in the hurry of business of that kind the most able judges are liable to err: " * Gibbs, J., assign- ing reasons for a judgment, in which he differed from an opinion of Mansfield, C. J., says, — " I have stated the reasons more particularly, because my lord was of a different opinion at nisi prius J but a judge cannot always at nisi prius entirely understand the cause :" ^ Mansfield, C. J., referring to a nisi prius decision of Lord Ellenborough, observes, — " When I first saw that case in Campbell, I was in the same state as Mr. Jus- tice Gibbs, and doubted a great deal whether it could be law. ... It is utterly impossible for any judge, whatever his learning and abilities may be, to decide at once rightly upon every point, which comes before him at nisi prius ; and whoever looks through Camp- bell's Reports will be greatly surprised to see, among ' 2 Durn. and E. YS, 74. ' By Lord Kenyon, 3 Durn. and E. = 1 H. Bl. S3, 63 ; 2 Durn. and E. 261, 262. 120, 123; 6 Durn. and E. 409, 423; 7 ' By Lord Kenyon, 5 Durn. and E. Durn. and E. 62, 85, 397; 5 Bam. and 409. Cr. 575, 577; 1 M'Clel. and Y. 190, ' By Gibbs, J., 4 Taunt. 810. 405 ; 2 Crompt. and M. 42, 66. 19 Digitized by Microsoft® 290 ESTIMATING AUTHORITIES. such an immense number of questions, many of them of the most important kind, which came before that noble and learned judge — not that there are mistakes, but that he is in by far the mbst of the causes so won- derfully right, beyond the proportion of any other judges:"^ Abbott, C. J., speaking of another case, says, — "Notwithstanding the great respect which I feel for every decision by Lord Ellenborough, I cannot forbear observing, that the case of B. v. P. was only a nisi prius decision, and the termination of the suit was such, (a juror being withdrawn,) as to give no opportunity of revising the opinion there expressed :" ^ Lord Eldon, adverting to a point, considered to be bound by a decision of Lord Kenyon, at nisi prim, observes, — "No one will suspect me of not giving all due weight to any opinion of Lord Kenyon ; but I must know a great deal more than I do, before that determination at nisi prius will decide my judgment upon such a point :" ^ Of another case, Best, J., thus speaks, — " The case of P. v. G., decided by Lord Ken- yon, has been referred to. No man can entertain a higher respect for the memory of that noble and learned judge than I do; but nisi prius decisions, coming even from him, unless they have been acted upon by succeeding judges sitting in bank, are entitled to very little consideration:"* And Best, C. J., ad- verting to a case at Lancaster assizes, says, — "As to the nisi prius case at Lancaster, I wish such cases were never cited. It is not right to repeat opinions hastily formed and delivered in the hurry of trial, and the practice of referring to them has occasioned all the confusion that the enemies of our law object to." ^ ' 5 Taunt. 195. ' 16 Ves. 262. " By Abbott, C. J., 3 Barn, and Cr. * 3 Barn, and Aid. 341. 143. ' 2 Bing. 90. Digitized by Microsoft® ESTIMATING AUTHORITIES. 291 The small weight of a nisi prius decision is further shown by an instance of an expressed satisfaction, that a particular point was brought before a court in bank. Lord Mansfield, speaking of such a point, says, — "I have long wished for an opportunity to have this point considered by the court; because I would not take upon myself, at nisi prius, to change what has commonly been the practice." -^ An interlocutory order of the Court of Chancery, as, an injunction to stop proceedings at law, is of less authority than is a final judgment of the court.* In Drew V. Harman, on counsel inferring an opinion of the court, from an injunction which they had granted, Eichards, C. B., interposed by saying, — " I wish it to be understood, that the circumstance of an injunction having been granted is not to be considered (as I ob- serve it frequently is in argument) as any thing like an indication of an opinion of the court on the merits of a cause. An injunction is but an interlocutory order, made for the sake of security, and very often the court, as will most probably be the case here, ulti- mately decides exactly the other way." * The comparative value of a decision on a petition in bankruptcy is thus stated by Lord Thurlow. — Speaking of the subject of such a petition he says, — " If indeed the subject was of an extent to bear being put into a different mode of investigation, I should have no objection to doing so ; but as it is, it will re- main only a decision in bankruptcy ; and whenever a case shall arise, that may bring the question fully be- fore the court in another shape, admitting of a more ' 2 Burr. 1081; 1 W. Bl. 261, 263. ° 5 Price, 322. "5 Price, 322; Daniell, 150; 1 Sim. and St. 2l4. Digitized by Microsoft® 292 ESTIMATING AUTHOEITIBS. solemn determination, wtat I now determine will only have the weight belonging to it, namely, a decision on a petition in bankruptcy." ^ Lord Manners having, in the Court of Chancery in Ireland, stated a case adjudged by Lord Eedesdale, against whose opinion it was said, — " That this was an opinion on a motion for an injunction, and not a delib- erate judgment on a hearing on pleadings and proofs," remarked on these circumstances, — "I do not think that that objection can have much weight. Where all the facts appear upon the bill and answer, and there is nothing in dispute between the parties but the law of the court, it is very common both in this court and in England to decide the question upon motion ; there , are many instances in the reports of Lord Eedesdale's time, and in the cotemporary reports; it is a great saving of expense to the parties, and the judgment of the court is equally entitled to weight and author- ity."^ [" As a general rule, a decision pronounced by an inferior court does not bind a superior one ; still there are circumstances in vrhich, by reason of long usage, or the character of the inferior judges, or something of the sort, such decisions or a course of decisions will be re- ceived by the higher tribunal with great respect. In England this apparent exception becomes almost the rule ; or, rather, a system of co-ordinate superior courts exists, and then the decisions of one are read in an- other, though perhaps not in the strictest sense as au- thority ; and, even in the House of Lords, very great weight is given to the adjudications of the working superior courts, whose judgments it has still jurisdic- tion to revise. But such is hardly authority in the ' 2 Cox, 70. » 2 Ball and B. 286. Digitized by Microsoft® ESTIMATING AUTHOEITIES. 293 very narrowest meaning of tlie word." ^ An instance of the House of Lords yielding its opinion and resting its judgment upon a decision of an inferior court, viz. ; the Exchequer Chamber, is afforded by the case of Lister v. Ferryman,* and it suggests- the question : Why, while reviewing a decision of the Exchequer Chamber, the House of Lords felt itself so fettered by a decision of the Exchequer Chamber as to cause them to reverse a decision of that court, not because they were dissatisfied with it, but because they considered it in conflict with a former decision of that same court (Exchequer Chamber) ? While it is the sole province of appellate courts to supervise decisions of the court below, they, nevertheless, in support of their judgments, cite the decisions of the courts below. In Belmont v. Coleman,^ Bacon, J., refers, in his opinion, to a report of a decision, made by himself at a special term in the court below, but he adds, " which I do not of course cite as an authority in this court." [As to the importance attached in the American courts to adjudications in the English tribunals, it has been truly said, that such decisions are only "quasi authority." * " As the colonies formed one country with England and the other parts of the kingdom and its dependencies, the English decisions pronounced afterward, down to the Revolution, are deemed with us somewhat more weighty than those which have been rendered since." ® " When an English statute which has' received a fixed and known construction is adopted in this State (Vermont), it must receive the ' Bishop's First Book of the Law, * Bishop's First Book of the Law, 95. §448. ■ , ' 5 Law Rep. 3Y4, add. Cas. ^ Bishop's First Book of the Law, 3 21 N. Y. 101. § 96, citing Koontz v. K"abb, 16 Md. 549, 555. Digitized by Microsoft® 294 ESTIMATING AUTHOEITIES. same construction here." ^ " It is scarcely necessary to say," remarks Denio, J., in Andrews v. Durant,* " that the English cases since the Revolution are not re- garded as authority in our courts. Upon disputed doctrines of the common law they are entitled to re- spectful consideration ; but where the question relates to the construction or effect of a written contract, they have no greater weigtt than may be due to the rea- sons given in their support." " We think," says Jus- tice Redfield, in DuUstin v. Cowdry,^ " the decisions of the English courts, as to the common law, or the construction of ancient statutes, are to be regarded of paramount authority, and especially should we so re- gard them when found to be in accordance with the' soundest reason and the wisest policy." " It is a rule universally adopted and practised upon in all our State and National tribunals when interpreting words and expressions in our statutes and charters which have been previously used and judicially expounded in the law of England, to take them, in the sense then familiarly known and understood, and this sense is best ascertained by judicial decisions and the usage of celebrated elementary writers." ^ These foreign cases,, adjudged by learned men in countries where the same general system of law prevails as here, are high evi- dences of what the law is. When cited in our courts, they are not only listened to with respect, but their conclusions are followed, unless the judge sees some good reason for dissenting.^ * * * Perhaps in some States the respect given to these foreign adjudi- cations is not quite so great as this statement would ^ Adams v. Field, 21 Vermont, 256. ° Cumberland v. Codrington, 3 ' 11 N. Y. 44. Johns. Ch. 229, 262; A. v. B., K. M. =■ 4 Mon. Law Rep. 193 N. S. Charlton's Rep. 228.. ' Curtis, J., 4 Cranch, 471. Digitized by Microsoft® ESTIMATING AUTHORITIES. 295 seem to imply ,^ and indeed there can be no very exact rule upon the subject. The legislature of Pennsylvania * * passed a statute prohibiting the citation in the tribun3.1s [of that State] of English cases bearing a date later than July 4, 17Y6.' " Yet," said Tilghman, Ch. J., " the legislature was never so unwise or so illib- eral as iio wish to restrain the judges from deriving useful information from the opinions of learned for- eigners of all nations." * A provision, prohibiting the citation of English cases, " exists also in one or two other States, but it is not likely to be further ex- tended." " [Ordinarily a decision in a court of the same State is preferred to a decision in a foreign tribunal, but this is not universally the case. Thus in Sheldon v. Wright,^ the Court of Appeals followed a case in a foreign tribunal ® in preference to a case in the Su- preme Court of New York,'^ because the former ap- peared to be better considered and to rest on sounder reasons. The decisions of the Supreme Court of the United States, although entitled to great consideration, are not binding on the State courts ; thus, per Cady, J., in Marfield v. Goodhue,^ " The decisions of that court (Supreme Court of the United States) are entitled to great consideration ; and in all cases which can be re- viewed in that court, its judgments must be regarded as binding on all other judicial tribunals in our coun- try, but in other cases the opinions of that court are ' Marks v. Morris, 4 Hen. and M. ' 5 N. Y. SIT. 463. ° Bachelor v. Bachelor, 1 = Du Ponceau's Jurisd. 102. 255. = Lewer v. Commonwealth, 15 S. ' Anon. 1 Wend. 90. and R. 93, 96. » 3 N. Y. 11. ' Bishop's First Book of the Law, §450. Digitized by Microsoft® 296 ESTIMATING AUTHOEITIBS. entitled to the same respect, and no other, that is due to the opinions of any other court composed of judges of equal learning and .ability." And in Stalker v. McDonald,^ the Court of Errors in New York refused to follow the decision of the United States Supreme Court, in Swift v. Tyson.^ Again, in Lyon v. Mitchell,' the Court of Appeals in New York disregarded the decision of the Supreme Court of the United States, in Norris v. Tool Co.* In Davis v. Packard,^ Davis, a foreign consul, was sued in the. Supreme Court of New York ; he did not plead his office in abatement or in bar, but judgment having passed against him, he sued out a writ of error to the then Court of Errors. That court affirmed the judgment of the Supreme Court. Davis then appealed to the Supreme Court of the United States, and that court reversed the judgment. Upon the record being remitted to the Court of Errors, that court entered a reversal of their judgment of affirmance, but dismissed the writ of error, thus alto- gether depriving Davis of any benefit from the judg- ment of the United States Supreme Court. A some- what similar course was pursued by the Court of Advocates in Scotland to avoid the effect of a judg- ment of the House of Lords.^ [The decisions of a State court are authoritative in the federal courts when they construe a local law ; ' as, ' 6 Hill, 93. ' Bank of Hamilton v. Dudley, 2 " 16 Peters, 1. Pet. 492; Gelpcke v. Dubuque, 1 Wall. ' 36 N. Y. 243. 115 ; Barker v. Henry, 1 Pa. 5B9 ; * 2 Wallace, 45. Nesmith v. Sheldon, 4 McLean, S16 ; ' 6 Wend. 32'7 ; 10 Wend. 50. As to 'J How. 812 ; Springer v. Foster, 2 St. the power of the Supreme Court of the 383 ; Heydock v. Stanhope, 1 Curt. U. S. to enforce its judgment. See 471 ; Bank of the United States v. Martin v. Hunter's Lessee, 1 Wheat. Longworth, 1 McL. 35 ; Dundas v. 305, 353. Bowler, 3 McL. 897 ; Boyle v. Arl- ' See Maequeen's Practice of the edge, Hemp. 620 ; Prentice v. Zane, House of Lords, 443. 11 Law Rep. 204. Digitized by Microsoft® ESTIMATIHG AUTHORITIES. 297 for example, a tax law,^ a statute of limitations,^ a stat- ute concerning land ; ^ and a decision of a State court that a State statute is not in conflict with the State constitution is binding on the federal court/ so is a decision which construes a State constitution.'* The construction of instruments of grant from and to the Crown of England is not a question of local law as to which the decisions of the State courts are binding on these of the Union.® The United States Courts follow the decisions of the State courts concerning execu- tions.'^ And where the construction of a State law has been settled by a series of decisions of the highest State court, differently from a former decision of the Supreme Court of the United States, the latter con- struction will be adopted by the federal courts.^ If a Circuit Court of the United States has adopted the construction of a local statute placed upon it by the State court, its judgment will not be reversed, because the State court subsequently overruled its former deci- sion.' The overruling of a decision in a State court is not allowed to retroact upon the judgments of the ' Paine i;. Wright, 6 McLean, 395. chen, H, 198; Nesmith v. Sheldon, ' LeffingweU v. Warren, 2 Bl. 599 ; 7 H. 812 ; s. c. 4 McL. 375 ; Leffingwell Harpending v. Dutch Church, 16 Pet, v. Warren, 2 Bl. 599 ; Thompson v. 455. Phillipa, Bald. 246 ; Coats v. Muse, 1 'Polk V. Wendal, 2 Overt. 118; Brock. 539; GriflBnga. Gibb, 1 McAl. Thatcher v. Powell, 6 Wh. 119 ; Mc- 212 ; Nichols v. Levy, 5 Wall. 433, and DoweU V. Peyton, 10 Wh. 454 ; Shel- numerous other eases. ley V. Guy, 11 Wh. 367; Bell v. Mor- « Gut v. Minnesota, 9 Wall. 35. riaon, 1 Pet. 352; D'Wolf v. Eabaud, ' Randall v. Brigham, 7 Wall. 523. 1 Pet. 476; 8. o. 1 Pa. 580; Davis v. ' Martin v. Waddell, 16 Pet. 367. Mason, 1 Pet. 503 ; Waring v. Jackson, ' U. S. v. Morrison, 4 Pet. 124. 1 Pet. 570; Gardner v. Collins, 2 Pet. " Green v. Neal, 6 Pet. 291, s. c. 68 ; Beach v. Viles, 2 Pet. 675 ; Mc- 1 McL. 18 ; S. P. Suydam v. William- Cluny V. Silliman, 3 Pet. 270 ; Ross son, 24 H. 427 ; Leffingwell v. Warren, v. McLung, 6 Pet. 283 ; McCutchen v. 2 Bl. 599. Marshall, 8 Pet. 220 ; Smith v. Kerno- ' Morgan v. Curtenius, 20 How. 1. Digitized by Microsoft® 298 ESTIMATING AUTHOEITIES. federal courts/ or affect past transactions ; ^ thus, a contract having been entered into under a settled con- struction of a State constitution, will be protected in the federal courts, notwithstanding a conflicting more recent decision of the highest State court ; * and so where bonds issued to hona fide holders for value are valid by the judicial decisions of a State, when issued, subsequent decisions cannot destroy their validity.* The State laws which prescribe rules of evidence in civil cases are binding as rules of decision in the fed- eral courts.^ [Where the decisions of the State courts, on a ques- tion affecting the title to real estate, are conflicting, the federal courts are bound to take the law as settled by the last decision, whether right or wrong, on principle^ and though decided by a bare majority of the judges,^ and if different constructions be given by the courts of several States, formed out of parts of the same terri- tory, to the same general law, such different construe^ tions are binding on the federal courts sitting in said States.'^ "Where a federal court is called on to construe the laws of a State, in a litigation between parties be- fore it, it is its duty to follow the decisions of the courts of the State, as to such construction.^ [The federal courts do not adopt the decisions of the State courts, on the construction of a compact between ' Loring -a. Marsh, 2 Cliff, 311. " Smith v. Shrlver, 14 Leg. Int. 172; = Gelpcke v. Dubuque, 1 Wall. 175; B. o. 3 Wall. Jr. C. G. ; Dike ». Kuhns, Mitchell v. Burlington, 4 Wall. 2'70 ; 5 Pitts. L. J. 239 ; Loring v. Marsh, 2 Larned v. Burlington, 4 Wall. 275. Cliff. 311. = State Bank of Ohio v. Knoop, 16 ' Christy ii. Pridgeon, 4 Wall. 96. How. 369. See Pease v. Peck, 18 How. ' Van Bokelen v. Brooklyn City 695 ; Rowel v. Runnels, 6 How. 134. Railroad Co. 5 Bl. C. C. 379 ; Bloss- * City of Kenosha ■€. Lamson, 9 burg and Corning Railroad Co. ti.Tioga Wall. 477. Railroad Co., 5 Bl. 379; Loring ». = Fowler v. Hecker, 4 Bl. C. C- Marsh, 2 Cliff, 811, 469. 425. Digitized by Microsoft® THE vaijTje of AIsT authoeity. 299 the States,^ nor on a question of equity law,^ nor on tlie construction of contracts, nor questions of general com- mercial law,^ nor on the construction of a deed by the rules of the common law,* nor upon the construction of a private statute,^ nor upon an incidental point not in question in the cause,® nor upon a question of construc- tion of the federal Constitution,'^ nor upon the construc- tion of a will unless it arises from a settled rule of property.^ [Where a question involved in the construction of State statues, practically affects those remedies of credit- ors which are protected by the Constitution, the Su- preme Court will exercise its own judgment on the meaning of such statutes, irrespective of the decisions of the State courts.'] SECTION II. OF CIECrrMSTANCES WHICH MAT INCREASE THE VALUE OF AN AUTHOEITY. A NAME often augments the authority of a judg- ment, or opinion.^" Such a name is, — "Marlatt w.Silk, 11 Pet. 1. s. o. 13 H. 218; Mutual Safety Insur- 'Neves v. Seott, 13 H. 268; Flagg ance Co. ■». The cargo of the George, V. Mann, 2 Sum. 491. Mayer v. Foulk- 01c. 89. rod, 4 W. C. C. 349 ; McFarlane v. Grif- ' Foxcroft v. Mallett, 4 H. 353; Chi- fith, 4 W. C. C. 585 ; Burt v. Keyea, 3 oago v. Robbins, 2 B1.-419 ; Thomas v. West. L. Mo. 290. Hatch, 3 Sum. 170. ' Swift V. Tyson, 16 Pet. 1 ; Don- " Williamson v. Berry, 8 How. 496. nellw. Columbian Ins. Co., 2 Sum. 367; " Carroll v. Carroll, 16 How. 276. Thomas );. Hatch. 3 Sum. 170; Car- ' Jefferson Branch Bank w. Skelly, penter v. Wash. Ins. Co. 16 Pet. 495; 1 Bl. 436. Robinson v. Commonwealth Insurance ° Lane v. Vick, 3 How. 464. Co., 3 Sum. 221; Williams v. Suffolk » Butz «. Muscatine, 8 Wall. 675. Insurance Co., 3 Sum. 270 ; s. c. 13 Pet. "° 5 Durn. and E. 566 ; 6 Durn. and 415 ; Gloucester Insurance Co. «. Youn- E. 423; 7 Durn. and E. 743; 4 East, ger, 2 Curt. 322 ; Bragg v. Meyer, 1 160 ; 7 Price, 347 ; 1 Brod. and B. McL 408; Browning v. Andrews, 3 195; 2 Biog. 295; 5 Yes. 538; 1 McL. 576; Austin v. MiDer, 5 McL. 153; Crompt. and M. 308-312. Digitized by Microsoft® 300 CIKCUMSTANCES WHICH MAY INCREASE Littleton : ^ Coke:^ [Bridgman, — " It is due to the memory of so great a man," said Lord Chancellor ; Nottingham, " when- ever we speak of him, to mention him with reverence and with veneration, for his learning and integrity ; " and Lord Ellenborough pronounced him, " a most emi- nent judge, distinguished by the profundity of his , learning and the extent of his industry."] Brooke : * Popham,* " a very able judge : " * Hale,^ " one of the ablest and most learned judges that ever adorned the profession ; " '^ " as correct, as learned, and as humane a judge, as ever graced a bench of justice ; " ® " one of the greatest and best men who ever sat in judgment : " ' Hobart,^" " a very great man ; " " " as great a man as ever lived ; " ^^ Winch : i» Hutton : " Twisden, " a very able lawyer ; " ^^ a name " of great authority : " ^^ Wyndham, a name " of great authority : " " ' Waies, 332. » By Grose, J., 3 East, 582. ' 2 Lord Raym. 1488 ; Willes, 332 ; " By Lord Kenyon, 1 East, 314. 8 East, 582; 2' Bing. 295, 29Y; 1 " Wmes, 332; 6 Durn. and E.441. M'Clel. and Y. 319 ; 3 Atk. 136, 141. " By Willes, C. J., 2 WUs. 78. ' 1 W. Bl. 140 ; 1 Eden, 199. " By Willes, C. J., 1 Wils. 55. * 6 Co. 75 ; Cro. Jac. 166. " 6 Durn. and E. 441. 'By Eyre, C. J., 1 Bos. and P. " Md. 610, 3 Ves. 674. " By Lord Kenyon, 3 Durn. arid » 2 Lord Kaym. 1488 ; Willes, 643, E. 17. 666; 4 Durn. and E. 311; 5 Durn. "By Lord Kenyon, 3 Durn. and and E. 556; 3 Maule and S. 5, 6; 1 E. 631. M'Clel. and Y. 318; 3 Atk. 136; 2 "By Lord Kenyon, 3 Durn. and Eden, 64. E. 631. ' By Lord Henley, 1 Eden, 252, 1 W. Bl. 182. • Digitized by Microsoft® THE VALUE ON AiT AUTHORITY. 301 Nottingham,^ " very great in the knowledge of law and equity ; " ^ " that great judge, styled the father of equity : " ^ Somers : * Holt,^ " that great man ; " "a man above all praise ; " ® " whose name gives a sanction to every- thing he said ; " ^ " than whom few more able lawyers ever sat in Westminster Hall : " ^ Powell, " a lawyer of no mean talent and acquire- ments;"* "one of the most learned judges of his day;"!" "who fell little short of Lord Holt him- self:"" Gould: 12 Turton : ^^ Treby:" Cowper,^^ " that great master of equity : ^^ Macclesfield, " a great common lawyer ; " ^'^ a very great chancellor ; ^^ " an able judge both in law and equity as ever sat on the bench : " ^^ Talbot, a man " of consummate knowle(lge ; " ^^ a very great chancellor : '^^ ' 1 Dum. and E. Y43. " By Lord Kenyon, Y Durn. and ' By Lord Henley, 1 Eden, 249. E. H3. ■ By Sir R. P. Arden, 5 Ves. 858. " 5 Durn. and E. 385. * 1 Durn. and E. 743 ; 4 Ves. 342. " Ibid. ' 2 Eden, 64 ; 1 Dum. and E. 743 ; " WiUes, 666. 14 East, 145, 146, 151 ; 1 M'Clel. and "■ 7 Durn. and E. 743 ; 1 Turn, and Y. 317, 318. E. 101. " By Lord Kenyon, 7 Durn. and '° By Lord Chancellor Parker, 1 P. E. 743. "W. 543. ' By Lord Kenyon, 6 Durn. and " By Lord Eldon, 1 Turn, and E. E. 423. 101. " By HuUock, B., 3 Younge and J. " By Willes, C. J., Willes, 472. 112. '» By Lord Eedesdale, 2 Sch. and • By Bayley, J., 6 Bing. 38. Lef. 632. " By Lord Tenterden, 3 Bam. and '" By Sir L. Kenyon, 1 Cox, 248. Adol. 270. " By •Willes, C. J., Willes, 472. Digitized by Microsoft® 302 CIRCUMSTANCES WHICH MAT INCEBASE Jekyll, a man " of consummate knowledge : "^ HardwicTce,^ a great common lawyer ; * " a great authority ; " * and of whom Lord Kenyon has thus spoken, — " I am old enough to remember that great judge, though but for a short time, before he left the Court of Chancery ; and. the knowledge of those, who lived before me, only fortified me in the opinion I formed of him, that his knowledge of the law was most extraordinary ; he had been trained up very early in the pursuit, he had great industry and abilk ties, and. was, in short, a consummate master of the profession : " ® Comyns, * " a very able common lawyer ; " '' "a very great judge ; " ^ " considered by his cotempora- ries as the most able lawyer in Westminster Hall : " ' Mansfield,!" "the great Lord Mansfield ;""" the founder of the commercial law of this country ; " ^^ a " very eminent judge ; ^^ " one of the greatest judges that ever sat in Westminster Hall ; " ^* who wUl be re^ membered. as long as the law of England or of Scot- land exists : ^^ Northington, " a great lawyer ; " " " a very excel- lent equity judge : " " ' By Sir L. Kenyon, 1 Cox, 248. " 6 Dura, and E. 423 ; 1 Dura, and » 5 Ves. 508 ; 1 Price, 211 ; 1 Sch. E. 222 ; 8 Durn. and E. 23 ; 2 Bing. and Lef. 292 ; 1 Ball and B. 552. 309 ; 1 Price, 347 ; 1 Crompt. and M. ' By Lord Eldon, 1 Turn, and R. 308, 309. 101. " By Alexander, 0. B., McClel. • By Lord Kenyon, 3 Durn. and 449. E. 3Y1. " By BuUer, J;, 2 Durn. and E. H. ' 1 Durn. and E. 416. " By Lord Eldon, 2 Dow, 306. "3 Durn. and E. 631; 8 Dui'n. "By Lord Eldon, 1 Dow and CI. and E. 378. 643. ' By Lord Hardwicke, 3 Atk. 16. « By Lord Eldon, 2 Dow, 311. ' By Alexander, C. B., McClel. " By Lord Eldon, 6 Ves. 640. 137. " By Graham, B., 10 Price, 278, 'By Lord. Kenyon, 3 Durn. and E. 64. Digitized by Microsoft® THE VALUE OF AN AUTHORITY. 303 Chief Justice "Willes, " no mean authority ; " ^ " cer- tainly a very great common lawyer : " ^ Thurlow,* " a great judge : " * Eyre, " who was always considered to he a strong- headed man." ^ [On an occasion in which Lord C. J. Eyre was quoted at the bar as having given two con- tradictory decisions, Lord Eldon said, — " His name has great authority with rae, particularly on questions re- lating to tithes. His judgment was very elaborate, and generally in writing; and when the energy of mind which he applied to them is considered, I am surprised that it could be supposed that he had con-, tradicted himself, and decided differently in the two cases. I think that, upon an attentive perusal, they will be found to be reconcilable." ^] Alvanley,^ " one of the safest guides in Westmin- ster Hall : " 8 De Grey, " a most learned judge ; " ' "a very emi- nent judge : " " Denison, " a most excellent lawyer : " " Heath, " a very learned judge ; " ^^ an eminent law- yer ; ^^ a judge " eminently versed in the knowledge of conveyancing : " " Chambre,^^ an " eminent lawyer ; " " " whose opin- ion is entitled to great weight . " 17 ' By Park, J., 3 Bing. 549. " By Lord Eldon, 6 Bing. 22, 3 ' By Lord Eldon, Y Price, 509. Bligb's New Rep. 156. ' 3 Ves. 630; 5 Ves. 638 ; 10 Price, " By Park, J., 12 Moore, 183. 278. " By Abbott, C. J., 6 Barn, and Cr. * By Sir E. P. Atden, 4 Bro. C. C. 676. 611. " By Park, J., 9 Bing. 641. ' By Richards, C. B., 10 Price, 42. " By Lord Eldon, 10 Ves. 263. • = 1 Jac. 370. " McClel. 632 ; 4 Moore and P. 70. ' 15 East, 198 ; 3 Dow, 11. '» By Park, J., 9 Bing. 641. ' By Best, C. J., 4 Bing. 242. " By Lord EUenborough, 4 East, ' By Lord Ellenborongh, 14 East, 150. 148, 149. Digitized by Microsoft® 304 CIEOUMSTANCES WHICH MAY INCREASE Ashhurst, ^ who " was always reckoned a learned judge : " ^ Buller, ^ " of whose high legal character all the profession formed a very just estimate : " * Gribbs, " one of the most learned and acute judges that ever sat in Westminster Hall : " ^ Richards, " very learned ; " ^ " an eminent equity judge ; " ^ and " than whom," observes HuUock, B., in the Court of Exchequer, " an abler equity lawyer never sat here : " ^ Burrough, ® " a man who for legal knowledge, and sound and correct understanding, was of no ordinary size : " " Tenterden, " eminently learned and accurate : " " Eldon, " the greatest judge in this country." ^^ The proposition that a name may augment the value of a judgment, or opinion, needs, perhaps, no proof A proof is, however, supplied in the references affixed to the distinguished names above mentioned. And further proof is furnished by the following, among other ,^^ clear judicial expressions on the matter: " There is one opinion entitled to great respect, con- sidering the person by whom it was pronounced; I mean the opinion of Lord Coke : " " " The case cited from Ventris ought not to be treated lightly, or over- turned without great consideration, because it has the ' 5 Taunt. 6Y1. ' By Lord Lyndhurst, 1 Dow and = By Park, J., 1 Croinpt. and M. CI. 150. 310. ' McClel. 24 ; 13 Price, 73. ' 5 Taunt. 671. " 1 Crompt. and M. 311. * By Park, J., 1 Crompt. and M. " By I^ark, J., 8 Bing. 534. 310. See also 8 Durn. and E. 593. " By Tindal, C. J., 1 Crompt. and ' By Lord Tenterden, 2 Barn, and M. 322. Add. 697. " By Sir T. Plumer, 2 Madd. 433. « By Sir T. Plumer, 1 Turn, and R. " 1 Crompt. and M. 308-312. 252. " By Best, C. J., 2. Bing. 295. Digitized by Microsoft® THE VALUE OF AH AUTHORITY. 305 sanction of Lord Hale's name : " ^ " The concurrence of men of sucli talents as Lords Nottingham, Somers, Holt and Cowper is nearly equal in authority to an express decision : " ^ " When I consider the great repu- tation of the judges, of whom the court was composed, when the case of H. v. S. was determined (my Lord Mansfield and Mr. Justice Aston being then on the Bench), it is in my estimation of the highest author- ity."^ The authority of a case is increased by the circum- stance, that it was decided by, or with the concurrence of, a judge peculiarly skilled in the particular branch, of law, relating to the case ; as — Lord Talbot, " one of the greatest real property lawyers, that ever filled the office of lord chancellor :" * Lord Alvanley, " who, to a very sound judgment, joined a very accurate knowledge of the law of real property ;" ® Sir J. Jekyll, a very great judge upon all questions of bequest : ® Lord Mansfield, " who may be truly said to be the founder of the commercial law of this country ;" ^ and of whom, with reference to some cases on marine in- surance, Lawrence, J., has thus spoken : — That these decisions have had great weight in the courts of com- mon law will not be wondered at, if it be recol- lected that they had the authority of Lord Mans- field, whose mind, when he filled the office of soli- citor general, had been particularly turned to the consideration of questions of prize, and who accord- ' By Lord Kenyon, 8 Durn. and E. ■* By Bayley, J., 6 Barn, and Cr. 656. 315. ' By Ashhurst, J. 1 Durn. and E. ° By Lord Ellenborough, 15 East, US. 198. » By Graham, B., 1 Price, 34V. 1 " 3 Ves. 630. Brod. and B. 198. ' By BuUer, J., 2 Durn. and E. 13. 30 Digitized by Microsoft® 306 CIRCUMSTANCES WHICH MAT INCKEASB ing to the account of Sir W. Blackstone (Comm. vol. Ill, 70,) attended and conducted all the de- cisions of the Cockpit during the whole of the war which began in the year 1756, and whose mas- terly acquaintance with the law of nations was known and revered by every state of Europe : ^ Denison, J., " a pleader of the first eminence ;" ^ " than whom no person was ever better versed in the rules of special pleading :" * Chambre, J., " that very able pleader :" * Gibbs, 0. J., " than whom no judge was ever more perfectly acquainted with the rules of pleading ;" ^ " a lawyer of great eminence in every department of his profession, and peculiarly skilled in the science and practice of pleading ;" ® " a man most eminent for his knowledge of commercial law :" ^ " no man had more knowledge of commercial law than Chief Justice Gibbs :" « Lord Macclesfield, " a great master of evidence :" ^ Lee, C. J., " who was peculiarly conversant in ses- sions' law :" " Aston, J., of whom Lord Kenyoh has thus spoken, — " The authority of Aston, J., is in all cases worth re- sorting to, but peculiarly so in cases of sessions' law, in which he was remarkably conversant :" " Eyre, C. B., " unquestionably a great authority upon subjects of revenue :" " [A " clear headed judge." ^' ] ' 3 Bos. and P. 527. ' By Park, J., 3 Bing. 391. " By Sir J. Mansfield, 2 Bos. and P. « By Park, J., 5 Bing. 547. New Eep. 201. • By WUlea, C. J., WiUes, 23. = By Lord Kenyon, 1 East, 650. " By Lord Kenyon, 8 Burn, and E. ' By Bayley, B., 1 Crompt. and J. 181. 673. " 4 Durn. and E. 735. And see 7 * By Abbott, 0. J., 1 Barn, and Or. Price, 347. 251. " By Lord Eldon, 8 Ves. 250. ' By Abbott, C. J., 3 Barn, and Or. " Thomas J. HUliard v. Kiohardson, 323. 8 Gray, 349. Digitized by Microsoft® THE VAIiUE OF AN AUTHORITY. 307 Lord Kenyon, " who was peculiarly well versed in the law of real property ;" ^ who possessed great infor- mation on the subject of piracy of books : ^ Heath, J., who possessed great knowledge of the law of real actions : * And here it may be mentioned, that Lord Ellen- borough, speaking of two cases on a writ of extent to levy a crown debt, appears to attach additional weight to them, because " Lord Chief Justice ^De Grey and Lord Kenyon, who concurred in these judgments, had been attorneys general and must have been conversant with the rights of the crown upon such questions."* And this occasion offers an opportunity to observe, that the Court of Exchequer may be represented as understanding more of revenue law than the Court of Chancery.® A judgment, or opinion, of a judge may sometimes derive a peculiar weight, from some particular judicial quality or character of him.* Judges, which, on this head, may be named are, — Lord Trevor, " a man most liberal in his construc- tions ;" '' " who had a freer way of thinking than most of the common law judges :"^ Lee, C. J., as cautious and painstaking a judge, as ever presided in the Court of King's Bench •? Wright, J., " who was one of the strictest lawjudges, that ever sat in Westminster Hall :"^' Lord King, who was as willing to adhere to the com- ' By Lord Eldon, 2 Dow, 254. Durn. and E. 418, n. ; 2 East, 114; 2 » By Lord Eldon, 2 Buss. 399. Sch. and Lef. 631, 632. ' By Part, J., 9 Bing. 640. ' ByLordHardwicke,! Ves. Jun.lT. ' 16 East, 259, 260. See also 8 "By Lord Hardwlcke, 1 Kenyon, Price, 308. 71, 1 Durn. and E. 418, n. ' 8 Vea. 252. ' By Lord Kenyon, 2 East, 114. ° 1 Ves. Jun. 17 ; I Kenyon, 71 ; 7 '° By Lord Mansfield, S Durn. and E. 386. Digitized by Microsoft® 308 CIEOUMSTAKOES "WHICH MAT INCKEASE mon law, as any judge that ever sat in the Court of Chancery •} Lord Camden, who is represented to have examined in a case before him the whole question, " with that accuracy which peculiarly belonged to him :"* Le Blanc, J,, " a most accurate judge :"* Sir Thomas Plumer, than whom " no man had more industry and research."* The authority of a case may, moreover, be strength- ened by the following circumstances ; and from which it will be seen, that the most common sources of that strength are, the learning of a judge or court ; the unanimity of the court ; the deliberate consideration of the case ; the eminence of the counsel who argued it ; or the fact that it has been acquiesced in, or not ap- pealed from. Thus, a case has borne an augmented weight, for these reasons: — 1. It was decided by most learned judges ; ^ by a " strong " court.® [ " I should consider," said Chief Justice Reeve, in King v. Middleton Insurance Com- pany,'' "a decision in that commercial State (New York), by a court (the Supreme Court), so highly respectable, and respecting a subject (insurance), to which their attention is so often called, of very high authority." " The same doctrine has been repeatedly recognized by the chancellor, and by the judges of the Supreme Court of the state of New York, who are justly ranked among the most enligbtened jurists of this, or of any other nation." ^ ] ' By Lord Harwickc, 3 Atk. 654. * By Alexander, C. B.,M'Clel. 568. "By Lord Eedesdale, 2 Sch. and '6'Bmg.W; 7 Price, 347. Lef. 631, 632. ° Prince v. Nicholson, S Taunt. 6lh ° By Lord Tenterden, 2 Barn, and ' 1 Conn. 205. Adol. 85Y. " The State v. Ellis, 3 Conn. 190. Digitized by Microsoft® THE VAIiUE OF AK AUTHORITY. 309 2. It was decided by a unanimous court.^ 3. It was decided " after coWderation." ^ 4. Infinite pains were taken with it : it was twice argued at the bar; and judgment was not given till some time after the second argument.* 5. It is the decision of Lord Hardwicke, " so great a man," who must have taken very considerable pains with the case, a case which must have undergone much consideration by him,* ["There is the au- thority of Lord Hardwicke upon the point, which would weigh down the most considerable doubt that I could be disposed to entertain." ^ " I feel a strong inclination of opinion upon this question ; but I shall not hold any opinion of my own without doubt, when the master of the rolls (Sir William Grant), has held directly the contrary." " "I feel that in differing from so great a judge, my own decision will not here- after possess all the authority which might otherwise attach to it." '' ] 6. It is the decision of a judge, who at first enter- tained an opinion different from his decision. " Lord Bathurst's judgment in L. v. L. is a positive decision, and is entitled to the greater weight, because when the point came first before him he entertained a different opinion."* 7. It is a case, which a judge at first objected to, but to which, on consideration, he has yielded his assent. " S. v. C. was at first a good deal cavilled at and objected to. The way, however, in which those objections — objections evidently taken per incuriam — ' Co. Litt. 254 a ; 6 Durn. and E. ' Per Lord Eldon, James v. Dean, 409; 1 Price, 86. 11 Ves. 391. ' 6 Durn. and E. 656. ' Per Lord Eldon, Mills v. Farmer, ' 4 Durn. and E. 568. 1 Meriv. 94. * 5 Ves. 500. • " 1 Turn, and R. 257. ' Per Lord Eldon, 6 Ves. 126. Digitized by Microsoft® 310 CIROUMSTANOES WHICH MAY INCREASE have yielded to further inquiry and reflection, greatly adds to its weight as ^ authority. In P. v. S. Lord Alvanley in the first breaking of the case expressed an opinion extremely adverse to S. v. C . . This was upon the first argument of the case. When he next comes to consider the question, however, after an interval of nine or ten days had given him time to re- consider the matter, and to reflect a little upon the authority of S. v. C, his lordship takes a very different view , . I consider his lord- ship's opinion in favor of that case as a grave au- thority; and what renders his assent to it the more valuable is, that it was yielded slowly and with reluctance, and as the result only of further considera- tion." ^ 8. It is a case, in which a point was settled by Lord Thurlow, upon great deliberation, and after he had consulted the judges upon it. "The decision is therefore of very high authority." * 9. It is a case, wherein the Lord Chancellor called to his assistance judges of the courts of law. " It is true that E.. v. R. was a case in bankruptcy ; but the Lord Chancellor called to his assistance Lord Ch. J. Lee, Lord Ch. B. Parker, and Mr. Justice Burnett ; so that the principle, on which the court there acted, must be considered as having received most authorita- tive sanction. These eminent individuals, and par- ticularly the Lord Chief Baron, and Mr. Justice Burnett, did not, in the view which they took of the question before them, confine themselves to the case of bankruptcy, but stated grounds of judgment which are of general application." * ' By Lord Brougham, 1 Buss, and '11 Ves. 411. M. 478-481. = 3 Euss. 58. Digitized by Microsoft® THE VALUE OF AJiT AUTHORITY. 311 10. It is a case determined by an eminent judge, who had recently considered the whole of the subject in another cause.^ 11. It is a case wherein former authorities were reviewed.^ ["The case was elaborately argued, and the reported opinions show that all the authorities on the subject were before the court, and were carefully considered. It is a clear authority, and it is not necessary to go further in the citation of cases."*] 12. It is a case attended with one or more of these circumstances — Eminence of counsel;* deliberation, and solemnity of decision;® parties' acquiescence; absence of appeal.® On this matter, the following judicial opinions on different cases are express and full authority. — "This case is not at all affected by the statute 32 Henry VIII. N. v. A. was decided many years after that statute had passed ; and considering who the counsel were who argued that case, it would be singular, if there had been any ground for making the objection now urged, that it should not have then been made.'^ B. v. L. is "a direct decision upon the point, certainly without argument ; but the counsel, whose learning we all know, and who was never for- ward to give up a case which he thought he could support, abandoned it." ^ " The last case is B. v. L. Certainly it was not argued, but it is a most positive decision ; and the counsel was certainly a most experi- enced advocate, and not disposed to abandon tenable points."' "If the parties were dissatisfied with ' 2 Russ. and M. 195. 193, 195, 449 ; 1 Crompt. and M. 309 ; » 1 Ves. Jun. 495 ; 1 ScK and Lef. 1 Sch. and Lef. 211. 319 ; 8 Price, 308. * 1 Durn. and E. 416 ; M'CIel. 195 ' Hunt J. Elias v. Farley, 5 Abb. 1 Crompt. and M. 309. Pra. R. 43 N. S. "7 Burn, and E. 416. * 1 Durn. and E. 416; M'CIel. 192, ' 8 Taunt. 121. ' 5 Taunt. 157. ' 6 Taunt. 163. Digitized by Microsoft® 312 CIECUMSTAKOES WHICH MAT INCREASE the decision in tlie ease cited of B. v. W., they might have questioned its propriety in the House of Lords by appeal; but as that decision was acquiesced in, when the parties had an opportunity of going to the appellant jurisdiction, it has acquired some weight by that circumstance." ^ B. v. C. " was by no means a rash determination. The case was argued with all the ability of the bar ; and the chancellor determined it upon full consideration.'"^ "The case of B. v. B. seems to have settled the law on this point, it being a resolution given on great consideration, in which the Lord Cowper, when of counsel, discouraged a writ of error in parliament." ^ And Lord Henley, speaking of a case determined by himself, says — " There was, as I remember, an appeal to the House of Lords, which was deserted ; and therefore the acquiescence of the bar in that judgment, is what makes it, after mature consideration, a considerable authority with me, though it was a judgment of my own." * Mr. Justice Buller thus speaks of a body of decisions: — "I know no reason why these decisions should not be as religiously and as sacredly observed, as any judgment, in any time, by any set of men. I believe they are founded in good sense, and are adapted to the transactions, the understanding, the welfare and interest of mankind. Many of them have to recommend them a circum- stance ordinarily of weight in judgment. They weref determined on facts apparent on the record, and writs of error might have been brought upon them ; but the reasons on which they were founded were so satis- factory, not only to the parties who were most essen- ' By Lord Kenyoa, 1 Burn, and E. = 2 P. W. 624. 252. * 1 Eden, 431 ' 2 Ves. Jun. 301. Digitized by Microsoft® THE VALUE OF AN AUTHOBITT. 313 tially interested in tte event, but to the profession, that no writ of error ever has been brought." ^ 13. It is a case affirmed on appeal to the House of Lords. "E. V. E. is a very strong case. I have examined the register's book; and it is right, as reported. The decree of Lord Cowper was affirmed ; therefore it is a very high authority." ^ " T. v. W. is a case of the highest authority ; especially valuable for the clear and able manner in which the argument is put in the judgment of Lord ErsMne, who did not deliver his opinion, till he had given the fullest de- liberation to the question, and taken great pains to satisfy his mind. His lordship states his reasons with his usual distinctness ; they are such as to carry com- plete conviction with them ; and at all events, they have since received the sanction of the House of Lords."* "I consider S. v. B. to be a case of great authority; for, independently of the talents of the persons by whom it was argued, it w;as before all the judges; and Lord Eldon, and all the other judges, except Lord Thurlow, concurred in the propriety of the decision."* A. v. Y. is "a case of the highest authority, because it was originally determined here (Court of Chancery) by Lord Macclesfield, and his decree was affirmed by the House of Lords, after questions put to all the judges." ® Similar reasons may augment the value of nisi prius cases.® Accordingly, the bench has said : — ^The case before Lord Chief Justice Holt is directly in ' 2 Bro. C. C. 385. " By Lord Commisaioner Eyre, 1 » By Sir R. P. Arden, 4 Ves. 833. Ves. Jun. 495, 4 Bro. C. C. 8. ' By Lord Brougham, I Russ. and ° See, besides the authorities after M. 254. mentioned, 3 Anstr. 70], 15 Ves. 262, * By Alexander, C. B., 8 Tonnge and 2 Crompt. and M. 86. and J. 286. Digitized by Microsoft® 314 CIECtJMSTANCES WHICH MAY ESTCEEASE point ; " which, though only a nisi prius case, and that not an absolute decision, yet was the opinion of a judge, whose name gives a sanction to every thing he said."^ And Abbott, C. J,, relying on three nisi prius cases, observes — " It is true, that all the three were decisions at nisi prius, but they were the deci- sions of a very great judge, and were not afterwards brought before the court:"^ and, again — "The cases of D. V. B. and S. v. W., and the case of Sir H. H., were decisions at nisi prius, but they were the deci- sions of a very learned judge ; they were capable of revision; they were not afterwards questioned; and the last of the three bears directly upon the question in the present case." ^ So Graham, B., grounding his opinion on a nisi prius commercial case, which came before Lord Kenyon, observes on that case — "Con- sidering what able men were counsel upon that occa- sion, it is not to be supposed for a moment, that if that decision could have been at all questioned, it would not have been carried further. But all the world acquiesced in it; the parties and their counsel ac- quiesced in it, and the conduct of the parties is a great matter in these mercantile transactions. They see, and know, and understand the language of the Royal Exchange, and the course of commercial deal- ings, and they would therefore, if that decision could have been questioned, have carried it further." * Lord Kenyon speaks of two nisi prius decisions of his own in these terms : — " I certainly should not rely on the cases decided before me at nisi prius, but those cases have been since recognized in the Court of Common ' 6 Durn. and E. 423. = 5 Barn, and Cr. W1. ' 5 Barn, and Cr. 575. * 1 M'Clel. and Y. 191. Digitized by Microsoft® THE VAIiUB OF AN AUTHORITY. 315 Pleas." ^ " If the case of S. v. G. had been merely a determination of my own at nisi prius, I should not have relied upon it at all; but being pressed by the plaintiffs' counsel at the trial, I afterwards consulted the other judges of this court (King's Bench), who all concurred in the opinion I gave at Guildhall. That case therefore has by that mean acquired an authority beyond a mere nisi prius decision."* Lord Kenyon, expressing his surprise, that, in a cause tried before himself, the case came to be reserved for the opinion of the court in bank, adds, " For I have decided the same question repeatedly at the sittings, and the propriety of my decision has never been Canvassed again upon a motion for a new trial.'" [ " The circumstance of no writ of error having been brought to reverse any of these judgments, is a strong proof of the universal opinion of the profession upon this subject."*] The circumstance, that an ancient decision has been from time to time acted on, stamps it with aug- mented authority.'* " Undoubtedly," observes Best, C. J., " every respect is due to an ancient decision, when from time to time it has been acted upon. Vires acquirit eundo: by passing down a series of years, and being from time to time recognized by every writer, ancient decisions acquire a degree of authority which does not belong to modern decisions ; — not for being more consonant with justice, but that they have the sanction of time." * Lastly, it may be noticed, that certainly a case is ' 7' Dura, and E. 397. Lord Kenyon, cited Middleton v. Lynn, " 6 Dura, and E. 409. 5 Conn. 98. » 1 East, 50. ' 7 Durn. and E. 419. * King „. Lynn, 2 T. R. 73S, per ' 2 Bing. 301. Digitized by Microsoft® 316 OIECUMSTANOES WHICH MAY LESSEN strengthened by its being cited with, approbation by- some text- writer of authority ; as by Mr. Justice Bul- Ler in his work on the law of nisi prius} SECTION III. OF CIECUMSTANCES WHICH MAT LESSEN THE VALUE OF AtJ AUTHOEITT. The atjthoeity of a case may be lessened by the following, amongst other,^ circumstances. A case has borne a diminished weight, for these reasons : — 1. The decision was made without argument:® the case was not argued, but passed without discussion : * 2. The case was decided without much considera- tion.* 3. It was very shortly argued; in great haste determined ; and it does not appear to have received all that consideration from the court, which it deserved.® 4. The court were equally divided,'' or were not unanimous,® in opinion : [In Mansfield v. Doolin,' Whiteside, Chief Justice, refused to accept Horton ' 2 Russ. and M. 165. period, see 2 Ball and B. 404, 405, ' 1 Stra. 209; 3 Dnrn. and E. 130 and 1 Sch. and Lef. 396. —132^ 496, 518; 1 Durn. and E. 743; ' 2 Glyn and J. 816; 4 Sim. 160, 3 Barn, and Aid. 232; 2 Barn, and Or. 151 ; 1 RusB. 64. 655; 3 Barn, and Adol. 47; 3 Taunt. * 9 East, 161—164. 284; 4 Taunt. 354; 1 Brod. and B. '3 Durn. and E. 131. 20"? ; 2 Brod. and B. 580 ; 2 Bing. ' 3 Bos. and P. 650, 661. 297— 303; 6 Price, 123, 124; 7 Price, ' Dougl. 328, ed. 1788; 2 Durn. 365; 18 Price, 168; M'CIel. 59; 5 and E. 140; 3 Durn. and E. 631; Yes. 858 ; 1 Russ. and M. 270 ; 2 Ball 14 East, 621. and B. 451, 452. Of the " acknowl- « 5 Durn. and E. 267 ; Cooper, 267 ; edged inaccuracy of the Court of Ex- M'CIel. 632. chequer" in Ireland at a certain ° Irish Rep. 4 C. L. 17. Digitized by Microsoft® THE VALUE OF AN AXJTHOEITY. 317 V. Sayer,^ as an authority, because among other reasons, " the judgments of the several members of the court, proceeded on different grounds."] 5. The cause was an amicable one,* or heard by consent,* or not opposed.* [The case of Eegina v. Clarke® was held not to be a binding authority, because it was decided on an ecc-parte hearing.® For " no sen- tence of any court is entitled intrinsically to the least respect in any other court or elsewhere, when it has been pronounced ex-parte and without an opportunity for defence." '' But in the People ex relatione, Bendon V. The County Judge of Rensselaer, Harris, J., held, — " The fact that * no objection appears to have been made to the right of the court to review these judg- ments, should not impair the value of the precedent."] 6. It is a case, where the decree, or order, was made by consent : ® 7. It is a case, where the decision is contrary to a prior decision of the same court, whicb earlier case was imknown to the counsel by whom the latter case was argued, and probably to the court also ; ^* 8. It is a case, where a judge, who joined in the decision, had been of a different opinion in an earlier case, which was not mentioned when the latter case was decided : ^^ 9. It is a decision, in giving which the court was misled by a case of no weight, but on whicb it ' 4 H. and N. 643. ' Irby v. Wilson, 1 Dev. and Bat. " 1 Dnrn. and E. 437. See 2 Eq. 676. Younge and J. 623. " 13 How. Pra. Eep. 401. » 1 Eusa. 48, 64; 3 Buss. 87 ; 1 ° 3 Ves. 713 ; 1 Buss. 48 ; 3 Buss. West's Cas. T. Hardw. 691. 87. ^ ^ . ' 2 Glyn and J. 366. " 2 Bred, and B. 693, 694; 7 Price, " % Moore's P. C. Cas. 77. 503. ' Beg. .. Hughes, Law Eep. IP. " » East, 161-164. C. Cas. 92. Digitized by Microsoft® 318 CIECUMSTAirCES WHICH MAT LESSEN grounded its decision : " As it appears the decision in the Court of King's Bench was founded on the author- ity of the case in Fitzherbert ; if that case ought to have no weight, then little attention is due to the de- cision founded on such authority : " ^ 10. It is a case, in which there was no final judg- ment : " There was no final judgment in R. v. "W. which detracts from its authority : " ^ 11. It is a case compromised:* "The authority of H. V. S. is as great as that of a single judge can be, but there was an appeal from the decision, attended by a compromise, which seriously ajBEects the case : " * 12. The reasons of the judgment are not disclosed in the report, and the case itself is not mentioned in any other book : ® 13. " The case is reported in a book, that is very incorrect : " ^ 14. " The case is too loosely reported to be relied on:"^ [Stoney v. American Life Ins. Co.,* " said to be so badly reported that it is difficult to say what questions arose." * ] 15. " It is a very short and loose report : " ^^ 16. It is a case, the note of which contains some positions entirely repugnant to every principle of law:" 17. It is anonymously reported :^^ ' 2 Bing. 292, 297-303. ' 11 Paige, 635. ' 1 Turn, and R. 230. " Denio, C. J., Farmers' Bank v. « Scott V. Tyler, 2 Bro. C. C. 489, Butchers' Bank, 14 N. Y. 623. cited 1 Ves. 169. " 2 Cox, 30. * 1 Turn, and R. 226, 230. " 1 Burn, and E. 269. ' 3 Durn. and E. 316. "3 Durn. and E. 130, 261 ; 1 East, ' 3 Atk. 318. 216. ' 2 Durn. and E. 475 ; 3 Durn. and E. 261, 263 ; 2 Crompt. and M. 42. Digitized by Microsoft® THE VALUE OF AN AUTHORITY. 319 18. It is a circuit case, of wbicli there is no note or report, and which, has been cited from some imperfect recollection : ^ 19. It is a case determined by Lord Clarendon, " who, after an absence from courts of justice for many years, was then recently returned to this country, and had not been for some time in habits of business : " ^ 20. It is a case, with the order made in which the judge, who made it, has expressed himself dissatisfied : * 21. It is a case now sub judice: " Rogers v. Earle* is no authority, being now snh judiceJ'' ^ The weight of a particular opinion of Chief Justice Vaughan is stated to be greatly weakened for these reasons : — " It was upon a motion, without much con- sideration ; another judge of the court declared himself of a contrary judgment, and the othfr two declared no opinion at all on the question ; so that it comes only to the opinion of a single judge against another, and all this upon a point not properly in the cause." ® [A case in which the particular question was not raised, although involved in it, is of little weight.'' " In regard to this case it is proper to say the point was not necessarily involved, and this, therefore, is not to be regarded as authority." ^ " In Trimbey v. Vig- nier, 1 Bing., N. C. 151, the Court of Common Pleas seem to have misunderstood the opinions of the advo- cates." ^ " I do not think our decision should be con- trolled by Burr v. Stenton, 52 Barb. 389, considering ' 1 Burr. 143, 145, 146 ; 1 Kenyon, ° 2 Atk. 668 ; 2 Stra. 1060. 436. ' The People v. Corning, 2 N. T. " 5 DuFn. and E. 384. See also 6 15. RusB. 248. ° Ingraham, J., Burke v. Valentine, ' 2 Sim. 40. 5 Abb. Pra. Rep. 170 N. S. * 1 Dick. 294. " Blackburn, J., Bradlaugh v. De ' 1 Dick. 304. I^i°> 5 I'*'™' ^sp. 475 C. P. Digitized by Microsoft® 320 CIRCUMSTANCES WHICH MAT LBSSEK the reasons given in the opinion in that case at general term, for reversing the special term and considering the special circumstances of that case. " ^ Brown v. Hinchman,'^ was not followed in Terry v. Fargo,^ be- cause in the former decision a statutory provision was overlooked. In Benjamin v. Benjamin,* decided in 1851, the court overlooked a statute passed in 1849, and decided contrary to the statute, so far as the stat- ute applied to the case. For which reason the New York Court of , Common Pleas refused to be bound by that decision.^ And Clarke v. Pinney® was rejected as authority,''^ because " decided on a wrong principle." Chief Justice Com stock, in Church v. Brown,® ad- mitted that the decision, in Brewster v. Silence,' fol- lowed in Draper v. Snow,^" was erroneous." In Strange's Reports we find such comments as these: " It was only Mr. J. Wright who said this, and see The King v. Inhabitants of Bishop, vide, cont/i^a. . . . It was only Mr. J. Chappie, and he was wrong, for the , act expressly requires," &c.] Circumstances may sometimes render a case in the House of Lords to be not of much weight. Thus, Peacock v. Spooner ^^ " has undergone considerable ob- servation," the judges, whose opinions were taken by the house, being six against two, " so that- it was a judgment, contrary to the opinion of a great majority of the judges : " it was a determination, " with great variety of opinion among the judges, and no peer in ' Clarkson o. Skidmore, 2 Lans. ° 6 Cow. 681. 242. ' B Wend. 393. " 9 Johns. "75. » 21 N. Y. 315. ' 10 Johns. 114. » 8 N. Y. 207. < 5 N, Y. 383. " 20 N. Y. 331. ' Romaine v. Kinsheimer, 2 Hilton, " Speyers v. Lambert, 1 Swe. 344. 521. '' 2 Vera. 43, 196, 2 Freem. 114. Digitized by Microsoft® THE VAliHE OF A^ AUTHOEITY. 321 the house was of the profession of the law : " ^ " it has always appeai-ed to all judges as a very strong deter- mination." * In St. John V. The Bishop of Winchester, the Court of Common Pleas, " after a week's considera- tion," made a unanimous decision, and on a writ of error the Court of King's Bench unanimously reversed it. Upon which reversal, a writ of error was brought in Parliament, when Smythe, C. B., concurred with the Court of King's Bench, and the other barons with the Court of Common Pleas, which latter opinion (of the Court of Common Pleas) was also strongly supported in argument by Lord Apsley, chancellor, and Lord Camden, the only law lords in the house. However, the question was carried without a division, to affirm the judgment of the Court of King's Bench. A day or two after which a motion was made to re-hear the cause, it being alleged that the majority of the lords present were clearly for reversing that judgment, though by a surprise, they did not divide the house. But the fact being not clearly ascertained, and also for the danger of such a precedent, the motion was with- drawn by consent.^ On this case the Court of Com- mon Pleas, composed of different judges, has observed, that, by reason of the circumstances detailed, " the au- thority of that case was not of much weight." * Lord Loughborough, speaking of a decision by the House of Lords, expresses an opinion that it was not entitled to much consideration, because " upon the journals of the House of Lords it appears, no one was present upon that occasion, who could know much of the mat- ter : it was not determined by lawyers ; and Lord ' 2 Vea. Sea 237, 660 ; 1 Madd. Hill v. St. John, S, C, 3 Bro. P. C, 483, 484. ed. Toml. 375. ' 2 Eden, 204. * 3 Taunt. 324. '2 "W. Bl. 930, 933, Cowp. 94; 21 Digitized by Microsoft® 322 LESSEKING VALUE OF AN AUTHOEITT. Harcourt speaks of it certainly as not such a decision as lie would follow; and one or two other judges have not treated it with much respect." * Also, Sir K. P. Arden, on citing Savage v. Humble, decided by the House of Lords,* and mentioning particular facts in the case, observed, — " If these were the grounds, on which the House of Lords ' proceeded, I must dissent from their judgment ;" and he added, "There was no lawyer at that time in the house (unless perhaps Lord Somers), and the case was much embarrassed by cir- cumstances." ^ ' e Ves. 565. ble v. Bill, S. C, 2 Vera. 444 ; cited ' 3 Bro. P. C, ed. TomL 5 ; Hum- 2 P. W. 148, and 11 Ves. 160, 161. ' 4 Bro. C. C. 137. Digitized by Microsoft® CHAPTER XIX. OF CERTAIN DUTIES OE A JUDGE, OE COUET. Makt duties of a judge, or court, have already been generally, or in particular, mentioned. Some that were named in the introductory chapter, and re- main for a separate notice, are the following duties relative to a suit: — the duties, namely, to hear the arguments of counsel ; to contend with difficulties pre- sented by the subject of the suit, or by authorities : to deliberate with a single and unbiassed mind on the judgment to be given ; to look forward to the conse- quences of the judgment contemplated. These duties are comprehended in the subjects of the different sec- tions of the present chapter. Difficulty, it is observ- able, is a chief occasion of most of the same duties : difficulty, generally speaking, springing from want of information, from discordancy of authorities, or from incorrectness or discordancy of reports. Difficulty, besides, often attends the interpretation of an instru- ment, and, especially, of Wills. [Further, as to the duties of a judge, we refer to Appendix II. One source of difficulty may be, want of knowledge in the judge. It has been said* — "No attorney is bound to know all the law. Grod forbid that it should be imagined that an attorney, or a counsel, or even a judge, is bound to know all the law." In Smith v. Chapman,^ Justice Tucker makes ' Montriou v. Jeffries, 2 Car. and P. ' 1 Hen. and M. 293. 113. Digitized by Microsoft® 324 OEETAIlir DUTIES OF A JUDGE. the mistake of attributing, " Keports tempore Finch," to Lord Nottingham. Another source of difficulty may be, error in judgment on the part of a judge; and when that occurs, Lord Brougham says,^ — "No judge ought to be ashamed, after erring in judgment, to acknowledge his error. Still less has a court, any reason, for so unseemly a reluctance, to admit that the dispensers of justice are subject to the common lot of humanity." Perhaps the most glaring instance of bad logic is found in the opinion, in Wilson v. The State of Wisconsin,* in which Crawford, J., says, — "Suppose we adopt a syllogistic system of reasoning on this subject, thus : — ["A felony is an offence punishable by imprison- ment in the State prison ; [" But the crime of adultery is punishable by im- prisonment in the State prison ; [" Therefore, adultery is a felony. This syllogisiQ ■. is correctly framed, if the first proposition be true in law, as stated and urged upon us, and yet the conclu- sion is notoriously incorrect." Of course, the learned judge errs in declaring the syllogism to be correctly ; framed ; the middle term is undistributed, and it is as valid reasoning as it would be to say, — [Vegetables grow ; [Animals grow ; [Therefore, animals are vegetables. [To have rendered Justice Crawford's syllogism a , valid one, his major premise should have been,— AH offences punishable by imprisonment in the State prison are felonies. Another instance of a judge re- sorting to a syllogism is, where Chief Baron Manwood ; proceeds to show that corporations have no souls. ' Ex-parte, Oottie, 14 Jurist, 655. ' 1 Smith's (Wis.) E. 191. Digitized by Microsoft® CERTAIN DUTIES OF A JUDGE. 325 wMch is tlitis stated:^ — "The opinion of Man wood, Ch. B., was tMs, as touching corporations : that they were invisible, immortal, and that they had no soul, and therefore no subpoena lieth against them, because they have no conscience nor soul. A corporation is a body aggregate — none can create souls but God ; but the king creates them, and therefore they have no souls." The readiness with which judges acknowledge any error into which they may chance to fall, is a very pleasing characteristic. Melius est recwrrere quam mali currere, said Lord Ellesmere ; and Lord Hard- wicke, in Walmsby v. Booth/ very nobly said, — " Upon this case being re-argued and reconsidered, I am thoroughly convinced that my former decree was wrong ; " and in another case, the same learned judge said, — " These are the reasons which incline me to alter my opinion, and I am not ashamed of doing it, for I always thought it a much greater reproach to a judge to continue in his error than to retract it ; " ' and Lord Eldon, in Mc-parte Nott,* less pointedly ad- mits his error, as thus : — " I feel bound to add, with respect to the case of Mc-parte Wylie, which has been so repeatedly appealed to during the argument, that as the first duty of a judge is to endeavor, in the case before him, to decide rightly, and that his next is, if in any future case of the like kind he has any reason to apprehend that his judgment was not upon such sound principles as it appeared to be when he pro- nounced it, that he should not hestitate to rectify his error. Looking at both these obligations, I feel my- self bound to state that I must, when I decided that case, have seen it in a point of view in which, after » 2 Bulstrode, 233. ' 2 Atk. 438. ' 2 Atk. 2V. ■* 2 Glyn and J. 308. Digitized by Microsoft® 326 CEETArU DUTIES OF A JUDGE. most laborious consideration, I cannot see it now." Every overruled case is an instance of judicial error, and the instances are too numerous to detail. A re- markable error was made, in Briggs v. Davis.^ Good judges are always ready to overrule their own deci- sions when the necessity is clear.^ A modern instance is, Monell, J., in Bretz v. Mayor of New York.^ " It is curious," says Vice Chancellor Turner, in Crosse v, Lawrence,* " that in an unreported case, of Curry v. Vine, Lord Cottenham, when at the rolls, decided exactly the other way from what he ultimately de- cided, in De Visme v. De Visme." ^ ] Sect. I. Of certain Facta UluBtrative of DiflScnlty. II. Of DiflSculty in interpreting Instruments. III. Of gaining Information from an OflScer of a Court ; from Civilians ; and from Merchants. rV. Of learning the whole Truth of a Case reported. V. Of hearing Arguments of Counsel. VI. Of obtaining the Opinion of another Judge, or Court. VII. Of avoiding Bias, VIII. Of postponing the Delivery of Judgment. IX. Of looking forward to the Consequences of a Judgment. SECTION I. OF OEETAnir FACTS ILLUSTEATIVE OF DIFFICTJLTr. Some idea of the frequency of difficulties, and of the magnitude of many of them, may be gathered from the following facts : — ' 20 N. Y. 16 ; corrected 21 IT. Y. Bertha, 14 Jur. 1007 ; Van Doren o. 674. Mayor of New York, 9 Paige, 389. ' Re Welman, 20 Verm. 663 ; The '4 Abb. Pra. Eep. 258 IS. S. State V. 5at, 13 Ire. 154 ; The Louisa * 16 Jur. 142. ' 1 Mac. and G. 836; 13 Jur. 1087. Digitized by Microsoft® TAOTS ILLUSTRATrVB OF DIPnCIILTT. 327 1. Instances, in wHch a judge has entertained doulats on a question, are too common to bear enumer- ation. Lord Eldon had doubts upon a will for twenty years.^ And on Lord Eldon's doubts, Eich- ards, C. B., has made this observation, — " Very long experience in the Court of Chancery has taught me the value of the Lord Chancellor's doubts on all occa- sions." * 2. A judge's opinion has been changed, " after ma- ture consideration ; " ' a change, which is not unfre- quent.* In a case on a will, Sir E. P. Arden changed his opinion more than once, — "I think' the case so very doubtful, that I must consider farther. I have changed my opinion more than once." ^ 3. Very generally, authorities are conflicting. Sometimes, two cases are " in direct opposition to each other,"* "directly contradictory;"^ and often many authorities are hardly, if at all, reconcilable,® or are, in some degree, contradictory.® [In Cardwell v. Hicks,^° the court did not agree, as to the effect of a decision of the Court of Appeals ; and see Downing v. Marshall, 23 How. Era. Eep. 20.] 4. Expressions of difficulty, caused by the state of authorities, or by some other circumstance, are fre- quent on the bench." These, or the like,^* expressions 'Earl of Radnor w. Shafto, 11 Ves. '3 Barn, and Add. 418; 3 Vea. 463. 96 ; 6 Ves. 332 ; 1 Ves. and B. 491, ' 10 Price, 111. 492; 1 Russ. 404; 1 Younge, 11. ' 1 Lord Raym. 516. ' 1 Sim. and St. 111. * Spencer v. Bullock, 2 Ves. Jun. "> Z1 Barb. 468. 689; Stenhouse v. Mitchell, 11 Ves. " Cowp. 718; 2 H.Bl. 601; 3Bing. 362; E3>-parte Nolte, 2 Glyn and J. 647, 661; 2 Russ. and M. 135; 1 Sim. SOT, 308. and St. \11. 'Milsom V. Awdry. 5 Ves. 466. " 16 East, 235; 4 Barn, and Add. '1 Ves. Jan. 495; Cas. T. Talb. 220, 222, 223; 6 Ves. 332; 1 Sim. and 128. St. \11. " 3 Bro. C. C. 697, Digitized by Microsoft® 328 FACTS ILLUSTBATIVB OF DIFFICULTY. are of repeated occurrence: — "The decisions run very- near to each other, and are hardly reconcilable:"* " It is impossible to reconcile the authorities, or range them under one sensible, plain, general rule:"^ " The authorities stand so well ranged, that the court would not appear to act too boldly, which ever side of the proposition they should adopt : "* "I have had great difficulty. I confess that I cannot reconcile the opinion I have formed with all the authorities on the subject, which are to be found in the books ; nor can I reconcile those authorities with one another:"* "I find it impossible to reconcile the various decisions. . . . To go through each case, and to extract the principle from it, would be a work of some difficulty, if not impossibility :"^ "I have looked through the case of M. v. W., and all the cases to which, in de- livering that judgment, my attention was drawn; a judgment which was the result of a very anxious en- deavor to examine every authority upon the subject ; and with all these cases I find myself under circum- stances very trying to a judge ; as the task of de- ducing ft'om them what is the true principle, is greater than I have abilities well to execute." ® Some practical remarks relative to conflicting and other cases may properly, it may be considered, be here introduced. When in a present case " there are authorities both ways," as the precedents are not uniform, it may be a duty to consider the present case according to some general rule. Thus, in a cause where the question was, " whether, when an administration is granted to ■ 3 Barn, and Adol. 418. ' 1 Younge, 11. ' 3 Ves. 96. • By Lord Eldon, 1 Yes. and B. 'Ibid, 98. 491. See also 492. * 1 Euss. 404. Digitized by Microsoft® FACTS ILLUSTKATIVE OF DIPFIOULTT. 329 two, and one dies, the administration shall cease and be void, or whether it shall survive to the other who is still living," Lord Talbot observed, — "There are authorities both ways in the present case, viz., that of A. V. B., where it was held by the Lord Cowper, that an administration would survive ; and that of B, v. B., where the contraiy was determined in the Ecclesiasti- cal Court. As therefore the precedents are not uni- form, we must consider this case according to the gen- eral rules of survivorship ; which seem to be pretty much the same both by the common and civil law." ^ So in a modern case it is said by Alexander, C. B. : — "I find it impossible to Teconcile the various deci- sions. The safer course, therefore, is, to follow what has been laid down as a clear general rule, than to attend to each particular case. To go through each case, and to extract the principle from it, would be a work of some difficulty, if not impossibility ; whilst the present case, as it appears to me, may easily be decided on the plain general ground." "^ Sometimes when it is required to extract a principle from cases difficult to be reconciled, it is hardly prac- ticable to discover it.^ Where there exists a known principle, it is, under many circumstances, the most fit ground of decision. The following opinions delivered on the bench are express to this purpose :* — " With- out minutely examining all the cases, or saying whether I do or do not agree with them, it is sufficient for me to abide by the principle established by them ; the principle is the thing which we are to extract from cases, and to apply it in the decision of other cases : " ^ 'Cas. T. Talb. 127, 128. * See also 2 Brod..and B. 681. ' 1 Younge, 11. ' By Lord Kenyon, 1 Durn. and E. ' 1 Ves. and B. 491, 492. 148. Digitized by Microsoft® 330 FACTS IliLUSTBATIVE OF DIFFICULTT. " With respect to the cases wliicli have been cited, it is to be observed, that when a general principle for the construction of an instrument is once laid down, the Court will not be restrained from making their own application of that principle, because there are cases in which it may have been applied in a different manner. The principle being once acknowledged, the only difficulty consists in making the most accurate application of it :" ^ " There are great authorities and opinions both ways, and we are therefore at liberty to decide upon principles :" ^ " When this appeal was argued, I thought the question depended so much upon the general doctrine of legal and equitable assets, that I desired time to look into the cases, to see what general rules had been established upon that subject ; for all doubtful points are decided by an application of general principles to the particular case :" * If au- thority be doubtful, we must recur to principles:"* " It must be admitted, that the two cases of H. v. G., and R. v. D., cannot be reconciled ; and between the conflicting opinions of Lord Hardwicke, recourse must be had to principle and analogy." ^ A case, which is the ground of a decision, some- times makes this decision consistent with other au- thorities. Accordingly, Lawrence, J., concurring in the decision of the rest of the court, says, — " The only case, that at first weighed with me against this decision, is that in 2 Modern ; but the case in the Year Books, on which that case proceeded, explains it, and makes it consistent with all the other authorities." * 5. A common wish of a judge is, that a case be de- ' By Lord Eldon, 2 Bos. and P. 24. ' By Best, J. 2 Brod. and B., 506. ' By Heath, J. 2 Bos. and P. 3*74. ' By Sir J. Leach, 5 Madd. 410. = By Lord Camden, 1 Bro. C. C. « 6 Durn. and 2.487. 138 n. Digitized by Microsoft® FACTS EDLUSTEATIVE OF DIPFIOULIT. 331 cided in the House of Lords.^ And he often puts it into the course to go to the House of Lords.* In a case on a will, and in which Lord Eldon affirmed a decree of Lord Rosslyn, Lord Eldon concluded his judgment by saying, — " Upon the whole, it is better for me to affirm the decree; not, as being satisfied with the principle of it, but, as I cannot make a de- cree, with which I should be better satisfied. That will put it into the course to go to the House of Lords ; where the opinion of the twelve judges may be taken upon the construction of the will.'" A case of great difficulty was, Giles v. Grover, and in this case in the Exchequer Chamber, Abbott, C. J., said, — "The question in this case is one which has agitated the Courts of "Westminster Hall for a great many years ; it is a question as to the priority of an extent at the suit of the crown over an execution at the suit of a sub- ject, the extent not having been tested until the sheriff had taken possession under the fieri facias upon the subject's execution. Upon this question there has been a difference of opinion in the courts of Westminster Hall ; the Court of King's Bench in one case, and the Court of Common Pleas in two cases, having decided that the extent, under such circumstances, was not entitled to priority over an execution at the suit of a subject, The Court of Exchequer has uniformly decided the other way, viz., that the extent was entitled to priority ; and one of these decisions is, in point of fact, later than those of the other courts. The question therefore be- comes one of great difficulty, and your lordship will not be surprised to hear that the Lord Chief Justice of the Common Pleas and mj^lf, having heard the ' 1 Eden, 414; 1 Euss. and M. 276, ' Beard v. Westcott, 1 Turn, and R 483. See also 2 Jac. and "W. 450-462 25. See 2 Jac. and W. 460. and 2 Swanst. 470. " Stuart v. Marquis of Bute, 11 Yes. 667. Digitized by Microsoft® 332 FACTS mLUSTEATIVE OF DIFFICULOTY. case argued, and considered it very maturely, have not been able to come to a decision upon the subject, and to agree as to what advice we should offer to your lordship. Having therefore communicated the result of our deliberations, it remains for the court to dis- pose of the case as it may think proper." Lord Lynd- hurst then said, — " Under the circumstances of this case, there having been this difference of opinion be- tween the courts of King's Bench, and Common Pleas, and Exctequer, and the two learned Chief Justices not being able to agree in any decision upon the question, although I have an opinion upon the subject, the best and most proper course, in my judgment, to dispose of it, in order that it may be formally decided by the court of the last resort, will be to affirm the judgment, that there may be an appeal to the House of Lords."' 6. Different judgments, or opinions, delivered in the same cause by judges of the same court, or of different courts, or in the same cause by different courts, and the frequency of these opposing judgments, or opinions, are conclusive proof of great difficulty, with which the judges have often to contend in constructing their judg- ments. Judges' difference of opinion may be, — on the power of modern practice, as of pleading, to alter the law contained in ancient authorities;^ on the point, whether a particular question is now open to argument ; " whether it Idg too late to consider that question, or not :"^ on the weight of a particular dictum:* on the application of a maxim :^ on the meaning and ap- ' 1 Toiinge and J., 248. * Steel v. Houghton, 1 H. Bl. 53, ^ Bead v. Brookmon ; 3 DvuS. and 54, 59, 63 ; Brisbane v. Dacres, 5 E. 161. Taunt. 153, 169, 162—4 BUgh's New ' Good V. Elliott, 3 Dura, and E. Rep. 243. 693, 697, 702. ' 6 Taunt. 160, 162. Digitized by Microsoft® FACTS ILLUSTEATrVE OF DUTICULTT. 333 plication of a maxim -} on the value of a decision •} on the question whether a case cited is distinguishable from the present case, or is an express, or a " most posi- tive decision," or a " direct decision upon the point : " * on the existence of a common law right : in other words, and the question, whether the common law sustains a particular right claimed :* on the intention in a will :® on the intention in a deed as a lease :* on the validity of a particular lease made under a power :^ on the question, whether a particular will can be deemed to be an execution of a power :^ on the force, which the law may cede to the express agreement of parties to an instrument as a bond :^ on the point, whether the particular case is distinguishable from a former decided case.^" In instances too numerous to be here enrolled, one dissentient voice has accompanied a judgment which a court has delivered. Often a court composed of four judges, has been in opinion equally divided." Some singular differences of opinion are found ; as particularly — ^in two cases on the interpretation of different wills : ^^ in a case, where, on a motion for a ' Deane v. Clayton, 7 Tannt. 498, " Cage v. Acton, 1 Lord Raym. 499, 501, 520, 521, 522, 529, 534. 515, 12 Mod. 288, 1 Salk. 325 ; cited 5 ' 6 Taunt. 157, 168, 163. Durn. and E. 884-38'?. ' Ibid. '° The King v. Ossett-cum-Gaw. * Steel V. Honghton, 1 H. Bl. 52-63 ; thorpe, 4 Barn, and AdoL 222, 223, 1 Blundell v. Catterall, 5 Bam. and Aid. Nev. and Man. 21. 274-316. " Griffith v. Harrison, 4 Durn. and ' Denn v. Mellor, or Moor, 6 Durn. E. 737 ; Laugher v. Pointer, 5 Barn, and E. 558, 6 Dum. and E. 175, 1 Bos. and Cr. 547, 8 Dowl. and Eyl. 556 ; and P. 558, 3 Anstr. 781. Norman v. Booth, 10 Barn, and Cr. ' Clifton V. Gerrard, 1 Bos. and P. 703 ; Deane v. Clayton, 7 Taunt. 489, 522, 7 Durn. and E. 676. 1 Moore, 203, cited 4 Bing. 642, 643, ' Doe V. Smith, 5 Maule and S. 467, 645 ; Scales v. Jacob, 3 Bing. 638, 1 Brod. and B. 97, 2 Brod. and B. 473. 11 Moore, 553; Strother i,. Barr, 5 ■' Doe, or Denn, v. Roake, 2 Bing. Bing. 136, 2 Moore and P. 207. 497, 10 Moore, 113, 6 Barn, and Cr. "Philips v. Philips, 1 P. W. 40; 720, 8 Dowl. and Ryl. 514. Doe v. Perratt, 10 Bing. 198. Digitized by Microsoft® 334 FACTS ILLUSTRATIVE OF DIFFICULTY. new trial, the twelve judges were equally divided, the division being, for a new trial, two judges of each court, and against it, two judges of each court :^ in cases, where several judges have concurred in an opinion contrary to the opinion of another judge, and have differed from one another in the reasons of the opinion, in which they concurred:^ and in a case, where, on a writ of error from the Common Pleas, the judgment there given was affirmed- in the King's Bench, but the judgment of this court was, on the motion of Lord Thurlow, reversed in the House of Lords, the division being nineteen against eighteen lords.* [Bradwell v. Weeks,* was reversed by the casting vote of the Lieutenant Governor, all the law members of the court voting for affirmance.'] Instances of different judgments of judges of the same court, are found in, besides the cases of different judgments before referred to, the cases here named in the margin.* And in addition to such instances of different judgments of judges of the same court, the reader may here be referred to several instances — of different judgments of judges of different courts : '^ of different judgments of two courts of law, which, on a case sent to each of them from the Court of Chancery, have returned conflicting certificates:^ of different ' Eex V. Bennett, 1 Stra. 106. and P. BTB ; Beale v. Thompson, 3 Bos. ' Ashby V. White, 2 Lord Raym. and P. 406 ; Houghton v. Matthews, 938, 960 ; 6 Mod. 50 ; Eatcliffe's case, lUd, 486 ; Nurse v. Craig, 2 Bos. and 1 Stra. 26'7, 268. P. New Eep. 148. ' Bishop of London «. Ffytche, 1 East, 496, CunBingham's Law of Sim- ' °°« "• ^"^' ^ '^'^- ^"'^ ^- ^^^ g2 ^^P- 336 ; Driver v. Frank, 8 Taunt. « 1 Johns. Ch. 208. *«8, 2 Moore, 519, 6 Price, 41 ; GUes t j^g Johns 1 "• Ctrover, 1 Younge and J. 232 ; 9 » Regina v. Paty, 2 Lord Raym. ^^^S' ^^S, 2 Moore and S. 197 ; Gar- 1106 ; MUlar «. Taylor, 4 Burr. 2303, '""'^ "" ^»'^"^^''' ^ prompt, and M. 31. 2896 ; Pasley v. Freeman, 3 Durn. and ' Beard v. Westcott, 6 Taunt. 393, E. 51 ; Goodtitle v. Otway, 1 Bos. 6 Barn, and Aid. 801, 1 Turn, and E. Digitized by Microsoft® FACTS ILLUSTRATIVE OF DIFFIOULTT. 335 judgments of two courts of law, on a case in error : ^ of different judgments in a cause in equity re-heard*' of different judgments on appeal to the Lord Chancellor from the Master of the Eolls,* or Vice-Chancellor : * and of different judgments of the House of Lords, and a court of law," or equity.® [Judges differ, but usually they differ with great respect for the opinions of each other. Now and then however, even the judicial mind, it would seem, chafes at legal dogmas as advanced by other judges. Else how can we explain the style in which the House of Lords overruled the Court of Exchequer Chamber, in Taylor v. The Chichester Eailway Company. In the court of first instance, Lord Chief Baron Pollock, and Barons Martin, Bramwell, and Pigott, gave judgment unanimously in favor of the plaintiff. On appeal the 26. And see Gore v. Gore, 2 P. W. 28, 64, 66, 'St. John V. Bishop of Winches- ter, 2 "W. BL 930, CoTvp. 94; Denn v. Mellor, 6 Dnm. and E. 658; Doe i). Moore, S. 0., 6 Dnm. and E. 11& ; Denn v. Moore, S. C, 1 Bos. and P. 668, 3 Anstr. 781 ; Clifton v. Gerrard, 1 Bos. and P. 622, 7 Dum. and E. 676 ; Doe V. Smith, 5 Marde and S. 467, 1 Brod. and B. 97, 3 Moore, 339 ; Doe a. Boake, 2 Bing. 497 ; Denn v. Roake, S. C, 6 Bam. and Cr. 720, 8 Dowl. and Byl. 614; Rennell v. Bishop of Lincoln, 3 Bing. 223, 11 Moore, 139, 7 Barn, and Or. 113. 9 DowL and Eyl. 810; Balme v. Hntton, 2 Crompt. and J. 19, 1 Crompt. and M. 262. 'PhUips V. Philips, 1 P. W. 34, 41; Luders v. Anstey, 4 Ves. 601, 5 Ves. 213. "Philips V. Philips, 1 P. W. 40; Hervey v. Aston, 1 Wesf s Gas. T. Hardw. 879, 414, 437, 1 Atk 361, Gas. T. Talb. 212; Bromley v. Hol- land, 5 Ves. 610, 7 Ves. 3 ; Mills v. Parmer, 1 Meriv. 56. * Turner v. Harvey, Jacob, 169. " Ashby V. White, 2 Lord Kaym. 938, 958, 6 Mod. 45, 1 Salk. 19; Denn V. Moore, 1 Bos. and P. 568, 2 Bos. and P. 247; Bishop of London v. Ffytche, 1 East, 487, 496, Cunning- ham's Law of Simony, 62 ; Doe v. Jes- Bon, 6 Maule and S. 95, 2 Bligh, 1 ; Doe V. Smith, 1 Brod. and B. 97, 3 Moore, 339, 2 Brod. and B. 473, 6 Moore, 332 ; Rowe v. Young, 2 Brod. and B. 166 ; Rennell v. Bishop of Lin- coln, 7 Barn, and Cr. 113, 9 Dowl. and Ryl. 810; Mirehouse i;. RenneU, S. C, 8 Bing. 490, 1 Moore and S. 683; Fletcher v. Lord Sondes, 3 Bing. 501, " De Gols V. Ward, Cas. T. Talb. 243 ; Lord Beaulieu v. Lord Cardigan. Ambl. 533, 3 Bro. P. C, ed. Toml. 277, cited 6 Ves. 483. Digitized by Microsoft® 336 FACTS IliliUSTKATIVE OB" DrPl'IOULTT. Court of Exchequer Chamber reversed this deci sion. The majority consisted of Justices Keating, Mellor, Montague Smith, andXush; Justices Willes and Blackburn dissented.^ The Lord Chancellor said.; " Can any one conceive such a contest as that being raised ? . . . . Would such a contrapt ever be suggested or dreamt of ? .... I need not d-v^ell upon the plain and obvious reasoning,, which is con- sonant in every way with good sense with, regard tq contracts. Nobody ever heard of a contract , being a one-sided one I confess I have endeavored to follow the judgment of the learned judges in the Court of Exchequer Chamber, from whom I have the misfortune, to differ in this case. I cannot see any force in the reason which they there allege." Lord Westbury expressed his dissent from the judges in the court below. After stating the propositions put for- ward by the respondents, and sanctioned by that court, his lordship says : " The whole thing is mere imagination about the agreement being ultra . vvres, and about the company committing a breach of trust. It proceeds only from a want of more accurately un- derstanding the meaning of terms, and the rules by which they are applied. Then to that must be added another extraordinary illusion." Then, after speaking of an argument drawn from the ultimate destination of certain money payable by the respondents, he says, " That is an utter confusion with respect to the pro- visions," and again, " This is only another instance of misconception of the nature of the provisions applica- ble to this subject," and his lordship finishes thus: "I regret that Sir C. Taylor has been put to the necessity of coming here to correct this misapprehension. The • 36 Law -J. Eep., N. S., Exch., 201. Digitized by Microsoft® INTERPRETING INSTRUMENTS. 337 case is an extremely clear one, and I am clearly of opinion that the judgment of the Court of Exchequer Chamber must be reversed." ["My brother Willes entertains some douht on the case, and but for the high authority of Paike, B., and the decisions. Glover v. Dixon, and WeWber v. Sparkes, would have thought that this case might have been otherwise decided. Were it not for the doubt of my brother Willes, I must say, speaking for myself, that this case would be entirely free fi-om doubt." ^ [In Regina v. Bird,^ was this remarkable difference of opinion. Campbell, C. J., "It is utterly impos- sible to commit the crime of munler yv^ithout an assault." Maule, J., "Murder can be committed with- out an assault." Alderson, B., "Murder does not include an assault necessarily."] SECTION II. OF DIFFICtrLTT DST INTEEPEETING INSTEDMENTS. Subjects of a suit which frequently occasi(m diffi- culty are, instruments of which an interpretation is required; as a lease,* lease under a power,* conveyance,* settlement,® bond or agreement on marriage.^ But an 'Kelly, C. B., Huddart v. Rigby, Bam. and Cr. 19Y, 3 Dowl. and Ryl. 5 Law Rep. 143 Q. B. 414. = 5 Cox, C. C. 20; 15 Jur. 193 ; 20 " Marquis Cholmondeley v. Lord Law J. R., N. S., 70 M. C. Clinton, 2 Meriv. l"?!, 2 Barn, and ' Love ■;;. Pares, 13 East, 80. Aid. 625, 2 Jac. and W. 1. * Doe dem. Earl of Jersey v. Smith, ' Prebble v. Boghurst, 1 Swanst. 1 Brod. and B. 9T, 2 Brod. and B. 473, 309, 1 Wils. 155 ; Frank v. Martin, 1 3 Moore, 339, 5 Moore, 332. Eden, 309. ' Earl of Cardigan v. Armitage, 2 23 Digitized by Microsoft® 338 mTEEPilETING INSTRUMENTS. instrument, which is the most common subject of a suit, and which, when required to be construed, causes the most considerable difficulty, is, a will. Lord Henley, giving judgment in the Court of Chancery, makes an observation, remarkable as much for its truth, as for its severity : — "It is the fate of all courts of justice upon wills, it is the peculiar destiny of this court in contracts, wills, and trusts, to be the authorized interpreters of nonsense, and to find the meaning of persons that had no meaning at all, exfumo dare luoem, tbt speciosa dehinc miracula promat. A creative power is required to bring light out of darkness, and sound or specious determinations from unintelligible instruments." ^ The interpretation of a will is governed by certain general rules. The chief of these rules are contained in the following passage, in which several of them are collected, and in few words expressed, by Sir E. P. Arden. This learned judge states: — -"The intention is to be collected from the whole will taken together. Every word is to have its effect. Every word is to be taken according to the natura,! and common import ; and if words of art are used, they are to be construed according to the technical sense, unless upon the whole will it is plain the testator did not so intend. The court are bound to carry the will into effect, pro-, vided it is consistent with the rules of law. Another rule must be added ; that if the court can see a gen- eral intention consistent with the rules of law, but the testator has attempted to carry that into effect in a way that is not permitted, the court is to give effect ' 2 Eden, 4. Digitized by Microsoft® INTEEPBETING mSTRUMBNTS. 339 to the general intention, thougli the particular mode shall fail." 1 ' The following facts supply ample proof of diffi- culty in construing wills : — It is not uncommon to hear it said on the bench, that a will is an extraordinary will ; ^ or a very dark and intricate will;® or that it is inaccurately penned;* or is oddly expressed ; ^ or very oddly worded ; ^ or is penned in an obscure and blundering mannerJ The wills, on which the bench made the following remarks, strong as those remarks are, are by no means solitary instances of the difficulties, which encompass the interpretation of wills : — " The will, upon which this suit arises, is almost incomprehensible, and per- fectly inconsistent with itself: " ^ "This is one of the most difficult questions that can occur ; the construc- tion of words, to which it is hardly possible to give any construction, which will not involve something like absurdity ; and it is impossible to put any con- struction upon them, which will not under certain cir- cumstances be contrary to the testator's intention : " * " I have, in . the best manner I could, considered the will ; but, of all the wills ever under my consideration, it is in many parts the most inconsistent, repugnant, and the most difficult to make common sense of, that I ever met with, all the questions being occasioned by the strange inconsistent penning : " ^® " The testator, holding the will in his hand, stated what in his judg- ment was its effect ; not indeed with any great accu- racy, for, to do justice to the testator, it was out of the ' 4 Ves. 329. ' 6 Tes. 308. ' 4 Ves. 847. ' 1 Ves. Sen. 110. ''l Ves. Sen. 22. * 5 Ves. 246. * 1 Atk. 43'7. ° B Ves. 466. * 1 Ves. Sen. 168. " 2 Ves. Sen. 2'78. Digitized by Microsoft® 340 INTBEPKETING INSTRUMENTS. power of any man living or dead, to state accurately what was the effect of the will : " ■'• '* In this case the attention of the court has been directed to a will, per- haps the most confused in its terms and .provisions of any ever submitted for judicial decision. It consists of unfinished sentences ; of words put together with- out regard to grammar or the ordinary rules of lan- guage ; and of bequests and dispositions, which appear so contradictory and unintelligible, as to render it almost impossible to put upon it any reasonable or consistent construction." ^ A striking illustration of difficulty of this kind accompanies the following observations, wTiich occur in a judgment given by Lord Kenyon : " After an anxious endeavor," says that learned lord, "to dis- cover the intention of a testator, it frequently happens that we can only conjecture what his intention was ; and sometimes there is scarcely enough to form even a conjecture. Formerly, Sir J. B. made his own will; and at the close of it he said, that he had disposed of his estate in so clear a manner, that he thought it im- possible for any lawyer to doubt about it. This will was afterward contested ; and it came before Lord Hardwicke, who Said, that he was so utterly at a loss to conceive what was the real intention of the testator,, that he wished he could find some ground on which to form a conjecture. So in the case of E. v. S., Lord Mansfield, whose mind was as equal to the explana- tion of difficult points, as that of any lawyer who ever sat in Westminster Hall, admitted the difficulty of deciding questions of this kind." ^ In several instances, a disposition in a will has ■ 1 Turn, and K. 69. » 8 Durn. and E. 502. ''SRuss.. 136, Digitized by Microsoft® INTERPRETING INSTRUMENTS. 341 been so deeply involved in obscurity, that the court has been wholly unable to discover the testator's meaning. And the disposition has, in consequence, been void for uncertainty. In cases, where this has happened, the court has said, — "This case has stood over longer than we should have permitted, in hopes that upon consideration we might be able to put a construction upon the will, consistent with some prob- able intention of the testator. But after very full and repeated consideration, we are not able, with any rational certainty, to discover what he meant : " ^ "The case is one of considerable difficulty, created chiefly by the very singular language of the will. The will is that of a person far advanced in years ; and it would perhaps be impossible to find a more senseless and absurd collection of words, than occurs in that part of it, which relates to the legacy in ques- tion." * • On the same ground of uncertainty, the whole of a will is sometimes void ; ^ as in a case, where the court observed,- — " This instrument presents ambiguity of every kind ; uncertainty both in the subject and in the objects of the bequest ; who are to take, and what is to be taken. The court cannot insert or transpose words, for the purpose of giving a meaning to instru- ments, which have none." * An important matter, relative to the interpretation of wills, remains to be mentioned. This is, the in- quiry which, in most instances, it is needful to make, whether the interpretation, already put on another will, binds the court to a particular construction.^ 'Doe «. Joinville, 3 East, 175. 1 Keb. 719; Mason v. Robinson, 2 ' Attorney General v. Sibtborpe, 2 Sim. and St. 295. Euss. and M. 115. * Mohun ■. Vernon, 1 P. Wms. "Hone v. Kent, 11 Barb. 315; 6 783. N. Y. 390. Digitized by Microsoft® 344 GAINING INFOEMATIOK. [The difficulty of interpretation is not confined to wills ; it extends to statutes. Mr. Justice Maule, in Stratton v. Pettit/ referring to an act of parliament remarked " that it was incongruous and impossible of operation, and its absurdities so great that the framers themselves had no very distinct notion of its meaning." And in Regina v. Scott,^ Mr. Justice Blackburn ob- served, with respect to an act passed in 1*746 : — " The statute, though not drawn in modern times, is some- what obscure." And Mr. Justice" Crompton, in Baines V. Swainson,^ referring to a passage in the English Factor's act, said it was impossible to define what was meant, and " it is one of those loose enactments which conveys much difficulty. When you get to these acts of parliament the difficulty is immense."] SECTION III. OF GAINING HSTFOEMATION FROM AN" OFFICEE OF A COtJET ; FEOM CIVILIANS ; AJSTD FEOM MEECHAl^TS. 1. A HABIT of the Court of Chancery is, to require information, relative to the practice of the court, from its officers, the masters, the registrar,* the six clerks,^ .and clerks in court ; as, — where, on a question " of a good deal of consequence," Lord Loughborough de- sired to " talk to some of the masters upon it." and ac- cordingly made inquiry into the practice in the mas- ters' office;^ and where Sir J. Leach, to learn the ' 16 C. B. 432. and St. 226 ; 2 Sim. 86 ; 1 Mylne and = 4 Best and S. 31i. K. 246. ' 4 Best and S. 270. ' 1 Sim. and St. 448. * 1 Sim. and St. 249, 433 ; 2 Sim. ' 2 Ves. Jun. 718, 719. Digitized by Microsoft® GAINING INFORMATION. 345 practice of the masters upon a particular subject, di- rected a question thereon to be submitted to them, in reply to which, a certificate was returned, signed by nine of the masters ; ^ and instances in which the regis- trar has furnished the court with cases ; ^ as where Sir J. Leach put off his decision upon a motion, " until he had consulted the registrar," whereupon his honor was furnished by the registrar with two cases on the subject ; * and the farther instance, in which the same learned judge referred it to the six clerks to certify, what was the practice on the point in question, and accordingly caused a question as to the practice to be addressed to the six clerks, who thereupon returned their certificate ; * and a case where Lord Hardwicke delivered his opinion, " after hearing several of the clerks in court." ® 2. In a cause on a ransom bill, the court wished the case to be spoken to by civilians. Lord Mansfield saying, " We can have no light from our own law." On a subsequent day, the case was accordingly so ar- gued.® In Cawthorne v. Chali6, Sir J. Leach, on a question of taking out letters of administration to J. C, ordered the case to stand over, in order that the opinion of a civilijan might be obtained, whether the plaintiff was or was not entitled to procure an admin- istration to the estate of J. C' And in Fowler v. Richards, the same learned judge, on a question rela- tive to representation under probates, directed that the cause should stand over, in order that the opinion of a civilian might be taken, and that inquiry might ■ ' 1 Sim. and St, 272, 2Y3. ' 1 Wesfs Cas. T. Hardw. 676. " 2 Madd. 185. ' Anthon v. Fisher, 3 Dougl., ed. ' 1 Sim. and St. 274. Frere and R. 166. * 1 Sim. and St. 120. And see ' 2 Sim. and St. 127. ibid. 448. Digitized by Microsoft® •46 GAINING INFOEMATION. )e made as to the practice and doctrine of the ecclesi- Lstical courts on the subject.^ In a further case, a [Tiestion arising on the admissibility of evidence to ixplain a testator's meaning with regard to certain egacies, Sir J. Leach inquired, — " What is the rule of he Ecclesiastical Court in these cases ? " And his lonor proceeded to say, — " On a question as to a egacy, I should think it right to follow the rules, by vhich they are guided in the reception of evidence. n general, they resort to the rule of the civil law, but lot in all cases. If this case would bear the expense, . should have wished to hear it argued by some civil- ans. Let a case be stated for the opinion of two ivilians." A case was accordingly so stated.^ A case before Lord Hardwicte, "being of a matter )f great consequence in trade," his lordship, after argu- nent at the bar, adjourned the cause to a particular lay, and desired the four merchants, who were exam- ned in the cause on the different sides, might attend n court, in order to be consulted by him on the point n the case ; and accordingly on that day they attended, lamely, two aldermen of London and merchants, and ;wo other merchants, " all of eminence in the mercan- iile line ; " and, after having asked them several ques- iions upon the custom and usage of merchants relating ;o the matter in doubt, his lordship gave his opinion.^ .n an action on a policy of ship-insurance, and where ;he court ordered the case to stand over for fixrther irgument, and it was necessary to understand what is neant by barratry, Lord Mansfield " in the meantime !onsidered of it, and consulted with men conversant in ' 6 Russ. 39. ' Kruger, or Cmger, o. "Wilcox, = HurBt V. Beach, 5 Madd. 356. Arntl. 262, 1 Dick. 269. Digitized by Microsoft® LEARNING THE WHOLE TEUTH. 347 mei'cantile affairs." ^ And, on a question relative to a bill of exchange, Lord Lougliborougli took time to consider of it, and afterwards mentioned, lie had " talked to one or two persons in trade " upon, it.^ [On an argument before one of the circuit courts of the United States, it was held that the opinion of a lawyer not in practice, given in a case other than the one before the court, may be quoted, not as authority, but to assist the judgment of the court.^ In an action tried before Lord Holt, on a wager whether a person playing at backgammon having touched one of his men without moving it, was bound to play it, the judge called in the assistance of the groom porter to decide the controversy.*] SECTION IV. ■ OF LEARNING THE WHOLE TEUTH OF A CASE EEPOETED. A EEPORT of a case very frequently presents some difficulty. It presents a difficulty, when there is rea- son to doubt, whether the court adjudged on the ground stated in the report;^ or it is impossible to say, on what ground the court did proceed.® It clearly also presents a difficulty, when it enables a judge to speak of its inaccuracy, falsity, or other vice, in these, or the like,'^ terms: — "The printed report must be ' erroneous : " ® " The book there is nonsense : " ' " This ' Vallejo V. Wheeler, Cowp. 143, ° Ihld. . 1 Crompt. and M. 266. 154_ ' 1 Bos. and P. 605; 4 Ves. 24,. ■^ ExrparU "Wackerbarth, 5 Ves. 689; 6 Tes. 640; 8 Ves. 250 ; 9 Ves. 5Y4, 211 ; 2 Rusa. and M. 115. ' Anon. 1 Wal. Jr. lOY. ' 5 Ves. 85. " Pope V. St. Leger, 1 Salk. 344. » 1 Lord Kaym. 522, 12 Mod. 294. "^mbL 56, 56. Digitized by Microsoft® / 348 LEARNING THE WHOLE TRUTH. must be a very incorrect report ; it is impossible that it can be a true representation of what Lord Chief Justice Holt said; "^ "I wish to look into the regis- trar's book as to that case of H. v. B. Every principle is against it. . . . I am entirely discharged of that €ase of H. v. B. It did not occiu- to me; but I found I had. the decree; and it is totally misreported:"^ ^' There is no one case to support this bill, except G. v. P., which is a totally false report : " ^ " In cases of this class, considerable confusion had been introduced from the inaccuracy of reporters No per- son can read Lord Thurlow's reported judgment upon this subject, without observing that he is often made to contradict himself:"* "The defendant's counsel have urged the case of E. v. P. I have looked into that case, and think it a very extraordinary one, par- ticularly as the judge sent for the parties to attend him. I can pay no credit to it, nor look upon it as any authority, or any thing more than the dream of some note-taker in this court." ^ Proof of the desire of the courts, to learn the whole truth of a case reported, is furnished by the following facts : — 1. The record of a case at law has been inspected.^ Chief Justice Holt, being dissatisfied with Lord Coke's report of a case, sent for the record, to know the judgment which was there given."^ In a modern in- stance, the Court of King's Bench referred to the record of a case, to know the language of a will there ; and, it may be mentioned, that, on looking at the 1 1 Burr. 458, 459. = 2 Eden, 316. " 6 Ves. 661. See alao 664. ' 2 Lord Raym. 1121. 1 Stra. 2 4 Ves. 689. 209 ; 2 Maule and S. 618. ' 5 Madd. 358. ' 2 Lord Raym. 982, 6 Mod. 76. Digitized by Microsoft® LEARNING THE WHOLE TRUTH. 349 record, it turned out there were words in the will going greatly beyond those contained in the report of the case.^ Chief Justice Holt expressly says, — "Where a report of a case is doubtful, it ought to be verified by the record." ^ 2. The Court of Chancery refers very commonly to the register-book of the registrar of the court ; ^ and sometimes to his minute-book.* The register-book has likewise been looked into by a judge of a court of law.^ 3. Inspection is sometimes made of a manuscript note of a case ; ® or the manuscript notes of the judge,, by whom it was decided.'^ [ " Jackson v. Semes,^ was decided by Lord El don, on a supposed recollection of an unreported dictum of Lord Thurlow, which (accord- ing to the precedent of Anthony and Csesar's will) he was in the habit of resorting to when at a loss for an authority." ^ ] 4. A brief in a cause is sometynes examined '"an examination that was made by Sir R. P. Arden, who had been counsel in the case, "in which he had got his brief, with the notes, he took on the back, of the arguments on the other side." " 5. A search for the will in a suit has been directed ; ' 9 Barn, and Cr. 282. =1 Burr. 428; 2Kenyon, 158; 5 ^ 2 Lord Eaym. 1203. Dnrn. and E. 61 ; 8 Durn. and E. 266. " 3 Atk. '71.3; 3 Ves. 5o2; 4 Ves. ° Willes, 166; 3 Bos. and P. 652 ; 333, 833; 5 Ves. 501, 503 ; 19 Ves. 5 Manle and S. 20. 666; 1 Mylne and K 243 ; 1 Madd. ' 8 Ves. 388, 390; 1 Tura and R. 464. The regiater-book often fails to 1'76. afford the required information, on " 16 Ves. 356. accovmt of the dismissal of a bill, or ' 10 Campbell's Lives of the Chanc. some other cirenmstance. 1 Atk. ch. ccxiii, p. 251. 378 ; 2 Ves. Jun. 474 ; 3 Ves. 46Y ; ■" 8 Taunt. 53 ; 5 Ves. 664. 4 Ves. 463 ; 5 Ves. 419, 469, 662, 664; " 5 Ves. 3B2. 1 Burr. 481 ; 1 Durn. and E. Y69. < 4 Ves. 529. Digitized by Microsoft® 350 LEAKNING THE WHOIiE TRUTH, as by Lord Loughborougli, who observed, — "I have had the registrar's book searched for the case of G. v. P.; and as it M^as suggested by the attorney-general that the will might be taken short in the registrar's book, I directed a search for the will." ^' 6. Where a case in the House of Lords has been imperfectly and incorrectly reported, information re- specting it has been sought by examining the printed cases.^ 7. Lord Hardwicke having examined a case in the register-book, and it .there looking as if a power had been executed by virtue of a private act of parlia- ment, his lordship sent for the record of the act.^ The present occasion may be taken to notice, that, in the instance of a case, or proposition, introduced into an abridgment, or digest, it is common to turn to ■ the report out of which it purports to be extracted;* a species of care that is often necessary to avoid being misled ; ^ since it has happened that the case in the report did not warrant the position in the abridg- ment,® or digest,*^ and, in one example, that the report was directly opposite to the abridgment.^ Sir E. Coke constantly offers the advice, " to use abridgments as tables, and to trust only to the books at large:® "I hold him," he says, "not discreet, that will sectari rivulos, when he may peterefontesy^" A learned chief justice of modern times, Lord EUen- ' 3 Ves. 552. " 4 Durn. and E. 310 ; 6 Durn. and "IMylneand K. 95. And see 3 E. 511; 14 East, 155; 8 Price, 357, Burn, and E. 697. 358 ; Daniell, 205. = 3 Atk. 713, 1 Ves. Sen. 306. ' 1 Maide and S. 363; 1 Barn, and *2 W. Bl. 1118, 1119; 6 Durn. Aid. 712. and E. 511 ; 14 East, 155; 1 Maule " 2 W. Bl. 1118, 1119. and S. 363 ; 8 Price, 357; Daniell, ' 4 Co. Pref. xi; 5 Co. 26 a; 10 Co. 206. • 41 a, 117 b. " 6 Co. 26 a; 10 Co. 41 a, 117 b. " 4 Co. Pref. xi. Digitized by Microsoft® liEARNING THE WHOLE TEUTH. 351 "borough, illustrates tlie indiscretion of not seeking the fountain, by observing, — " It is extremely important, where citations are made from the year-books in the abridgments, to look at the cases themselves, from which the dicta are imported ; for I have often found, that a reference to the original case gives a very differ- ent meaning to the passage cited." ^ One instance is met with, in which the Court of King's Bench inspected the record of a case in Rolle's Abridgment: and from which record it appeared, "that no such question, as supposed by Lord RoUe, was ever directly or indirectly decided, or could prop- erly be argued." * ["In many cases," says Lord Hardwicke, in Giles V. Wilcox,* " abridgments are extremely useful, though sometimes they are prejudicial, by curtailing and mis- taking the sense of the author." " It is dangerous to found opinions on abridgments, however respectable."'' The abridgment of the Factors' act, in Abbot on Ship- ping, is erroneous.® Blin v. Campbell,^ is criticised in Gates V. Miles,'^ and said to be founded on an erroneous proposition in one of Chitty's text-books, which he after- wards corrected. In Eoscoe's Evidence, page 567, 11th edition, is cited, Bennington v. Bennington, Croke, Eliz. 157, as deciding that, one tenant in com- mon can have trespass against his co-tenant, for carrying off crops. It should be cannot. The error caused a wrong decision at nisi prius, corrected by the court in bank.^] ■ 14 East, 155. " 14 Johna. 432. = 2 Maule and S. 518-520. ' 3 Conn. 64. ' 2 Atk. 142. " Jacobs v. Seward, IV Law Rep. * Irish V. Elliott, Addison, 242, and 32 8 C. P., and see 12 Law Jour. C. P. an instance from Viner is given. 166. ' Warren's Law Studies, 491 note. Digitized by Microsoft® 352 HEARING AEGUMBSTTS 01' C0i:]5fSEL. SECTION" V. OF HBAKING AEGUMENTS OF COtJNSEL. There is a case, in whicli Sir R. P. Arden, when the cause was opeaed, expressed an opinion, but nev- ertheless suiFered counsel to proceed in their argu- ment. After which that learned judge observed, — "I am not sorry, though my first impressions upon this point are not removed, and though the time it has taken can now be very ill spared, that this cause has been heard throughout ; for when gentlemen of eminence at the bar resist the first impressions of the court, it is my duty, however satisfied I may feel my- self, not to decide, till I hear what can be said." ^ [It is related of Judge Story ,^ that, being retained for the defendant, in Rust v. Low, 6 Mass. 90, when the case was about to come on, Mr. Prescott, who was of counsel with the plaintiff, said to Story, — " We shall beat you. Lord Hale is against you ; " alluding to a note by that great lawyer to Fitzherbert's Natwra Brevium. At the argument, this note to Fitzherberfc was cited for the plaintiff. Story, on opening for the defence, said, — " I think I shall satisfy the court that Lord Hale is mistaken." " What, Brother Story ! " said Ch. Justice Parsons, "you undertake a difficult task." But Story did satisfy the judge that Lord Hale was in error. Mr. Somers, afterwards the great Lord Chancellor, when a very young man, rising after five or six seniors, said, — "That he was of the same side, but that so much had been already said, he had 'Binford o. Dommett, 4 Ves. 756, ^ 1 Life and Letters, UY. 768, 761. Digitized by Microsoft® HBAErSTG AEaUMEIfTS OF COUNSEL. 353 no room to add anything, and therefore he would not take up his Lordship's time by repeating what had been so well urged by the gentlemen who went be- fore him." "Sir," said Lord Nottingham, "pray go on. I sit in this place to hear every body. You never repeat, nor will you take up my time; and therefore I shall listen to you with pleasure." ^ [It is one of the duties of a judge " to render it disagreeable to counsel to talk nonsense." ^ ] The courts have, it appears, a discretionary power with regard to a second argument of a case.® [The law gives a right to be heard once only.*] After a cause has been once argued, then, before judgment, application is often made to the court to hear a second argument. This application is not always complied with ; ^ it has been refused in one instance, the court " thinking it to be a very clear case ; " ® and again in a cause, where, counsel having " expressed his anxious desire that the court, if they had any doubt upon the question, would require another argument, on account of the great importance of the case, and of the topics which it embraced," Lord Ellenborough said, — " It does not appear to me, with respect to the only points which are before us in judgment in this case, that any farther argument is necessary: the case has been already argued very fully and with great ability, and I do not think that further light can be thrown upon ' IV Camp. Lives of the Chan. ch. what he says, X Lives, (fee, ch. ccxiii, xcii, p. 210. p. 223. " VI Campbeirs Lives Chanc, II, ^See 2 Crompt. and M. 42. said to be a dietum of Lord Lyndhurst. * Sodonsby v. McKee, 4 Marsh. Lord Campbell adds in a note that he (Ky.) R. 275. made the statement before he was a ' Combe v. Pitt, 3 Burr. 1432. judge, that after having been a judge, ' Edwards v. Moseley, WOles, 1 95 he adhered to the sentiment ; and see 33 Digitized by Microsoft® 354 HBAEING AEGTJMENTS OF COUNSEL. the subject by another argument. If the court had any doubt upon the case, they would certainly take further time for the consideration of it ; but it will be recollected that it has been depending for some time before us ; and having been discussed at great extent, and the authorities diligently canvassed in the course of the last term, it has naturally led the judges to look with attention into the authorities then cited, and to take a fall consideration of the record before us ; and upon the most mature consideration of that record, and of the law connected with the subject-matter, I own, I have not a particle of doubt as to the judgment which it behooves the court to pronounce upon this occasion." ^ Several cases occur, wherein a second argument has taken place,** or been allowed.* It was allowed in Booth V. Hodgson, where Lord Kenyon observed, — " It is the great duty of every court of justice to ad- minister justice as well as they can between the liti- gating parties ; another, and not less material, duty is, to satisfy those parties that the whole case has been examined and considered : and it was with a view to the latter of these, to the pressing instance of the plaintiffs' counsel, and not on account of any doubt on the subject, that this case stood for a second argu- ment."* A second argument was also permitted in Geyer v. Aguilar, a ship insurance case, and in which the court was concluded by certain judgments given in France ; and here Lord Kenyon said, — " When this 'Burdett v. Abbot, 14 East, 131 ; 5 1 Burn, and E. 482; Salvin v. Thorn- Dow, 165, 200, 202. ton, Ambl. 645. See 2 Crompt. and " Driver v. Frank, 3 Maule and S. M. 42. 25, 8 Taunt. 468, i Moore, 519, 6 *& Durn. and E. 408. See 2 Price, 41. Crompt. and M. 42. ' Countess of Strathmore v. Bowes, Digitized by Microsoft® HEAEING AEGUMENTS OF COUNSEL. 355 case was argued in the last term, the parties, desired to have a second argument ; to this the court readily- acceded, from an anxious wish that it might produce such arguments and reasons, as would enable them to form a judicial opinion according to their individual feeling. The situation of judges is such that they are sometimes obliged to decide against their own feelings as men. We come to decide this case bound and shackled by certain rules, from which we dare not depart." ^ Several cases are found, in which the court has wished to have, or directed, a second argument.^ As, in Doe v. Hellier, where Lord Kenyon observed, — " When this case was argued in the last term, we de- sired a second argument, not because light was not thrown upon the subject by the first argument, but on account of the novelty of the case, and because we wished to look into the authorities." * And, again, in Lickbarrow v. Mason, Ashhurst, J., saying, — " As this was a mercantile question of very great importance to the public, and had never received a solemn decision in a court of law, we were for that reason desirous of having the matter argued a second time, rather than on account of any great doubts which we entertained on the first argument." * A third instance is, Purdew V. Jackson, where Sir T. Plumer postponed the case, with this observation, — " The question is of too great and of too general importance to be decided without the most patient consideration, and without giving to both parties an opportunity of carefully investigating ' 1 Durn. and E. 695. of London, 1 Atk. 618 ; Hervey v. As- ' Vallejo V. Wheeler, Cowp. 144, ton, 1 West's Gas. T. Hardw. 379. 154; Thurston v. Mills, 16 East, 268; '3 Dnrn. and E. 169. Evans •«. George, 1 2 Price, 76, 100, * 2 Dura and E. 70. 1 McClel. and Y. 677; HUl v. Bishop Digitized by Microsoft® 356 HEAnma arguments op couksel. all tlie authorities on the subject. It is therefore my •wish that the case should stand over, in order to be again argued by one counsel on each side." ^ Some cases have been argued three times.^ [Scott V. Paquet* was twice argued on appeal, and the case of Moss V. Averill,* after being thrice argued in the Court of Appeals, was decided on an equal division of the Court.] Holt V. Ward was argued four times.^ Tooke V. Hollingworth, a case, "very full of thorny points," was argued three times in the King's Bench ; and, a writ of error having been brought on the judg- ment there, it was afterwards twice argued in the Exchequer Chamber. Here a length of time, "per- haps somewhat inconvenient to the parties," elapsed, before the court could come to an agreement. It affirmed, it may be mentioned, the judgment below.* Doe V. Fonnereau was twice argued, and after the second argument, Lord Mansfield delivered the opinion of the court in favor of the defendant. ^ A few days after, however, his lordship said, — " The court had de- cided, on the authority of the case of Goodman v. Good- right, as reported by Sir James Burrow, but that they had since seen a manuscript note of that case, taken by Kenyon, which assigned a ground for the determi- nation different from that stated by Sir James Bur- row ; that the court, upon this, entertained considera- ble doubts concerning the opinion delivered a few days before, and desired to have the case argued again." The case was accordingly argued a third ^1 Kuss. 24. ° 1 Law Rep. 55V; Privy CouncU "Jemmot v. Godly, 1 Lev. lYO; Caa. Freeman v. Barnes, 1 Ventr. 80, 1 * 10 N. T. 449. Lev. -210. ' 2 Stra. 938, Fitzg. 1'75, 2^5. « 5 Burn, and E. 215, 2 H. Bl. 601. Digitized by Microsoft® HEAEING AEGUMENTS OF COUNSEL. 357 time ; and the court changed their opinion, and gave judgment for the plaintiff.^ A case has happened, where, after judgment given, " the matter was opened again, upon the mention of a case wherein the same point had been ruled differently; which case had not been adverted to in the course of the argument : the court, therefore, gave leave to the plaintiff's counsel to bring on the case again, that they might have an opportunity of re-considering their de- termination." The cause accordingly stood over, " when the court upon full consideration resolved to abide by their former opinion, before delivered." ^ The utility and importance of counsel's argument are proved, if proof be needed, by the power which it has, sometimes to stagger,* or to cause to fluctuate,* and sometimes to convince,® the mind of the court. Buller, J., begins his judgment in a cause, which had been twice argued, by observing, — " This case has been very fully, very elaborately, and very ably ar- gued, both now and in the last term ; and though the former arguments on the part of the defendant .did not convince my mind, yet they staggered me so niuch that I wished to hear a second argument."* So in another cause, Abbott, C. J., says, — " This case has been most fully and satisfactorily discussed, and the opinion I had originally formed has been changed in the course of the argument." And Bayley, J., stated, — " I enter- 'Dongl. 4*70, 489, ed. 1783, and 2 2 Bam. and Aid. 153, 1B5 ; Eennell v. ■Dongl. 487, 507, 4th ed. Bishop oi Lincoln, 7 Barn, and Cr. " Robinson v. Drybrough, 6 Durn. 179 ; Child v. Stephens, 1 Vern. 101 ; and E. 317. Salvin v. Thornton, Ambl. 546, 548, ' 2 Durn. and E. 72. 649 ; Ackroyd v. Smithaon, 1 Bro. C. * 16 East, 233 ; 8 Bing. 635 ; 2 C. 503, cited Daniell, 228.-2 Bos. and Younge and J. 410 ; 3 Tounge and J. P. 28 ; 3 Atk. 306. 27 ; 13 Price, 256. " 2 Durn. and E. 72. ' The King v. Inhabitants of Idle, Digitized by Microsoft® 358 HEAKINa AEGUMBNT8 OF COUNSEL. tained at first great doubts in this case, whicli the dis- cussion it has undergone has, however, entirely re- moved." ^ And agaiii, in another case, Bayley, J., ob- served, — " I have no difficulty in saying, that I came to the argument in this case with a very strong im- pression upon my mind against the plaintiff's right, but the light which was thrown upon the subject by the powerful argument of Mr. Patteson, and the au- thorities to which I have referred, have induced me to think that my first impressions were erroneous.^ llolt V. Ward was, as before is noticed, argued a fourth time : " The court were extremely doubtful, but were convinced by the argument of Mr. Reeves, afterwards Lord Chief Justice of the Court of Common Pleas ; and indeed it was a very fine one.* The " very able " argument of Mr. Scott, in Ackroyd v. Smithson,*. is thus mentioned by Chief Baron Eichards; Speaking of that case, and Sir. T. Sewell's decision there, and referring to certain other cases, the learned Chief Baron observes, — " Lord Eldon, who was then a very young man at the bar, was extremely dissatisfied with that decision, and advised an appeal ; but his clients did not attend to him ; but some other party in the cause, fortunately for justice, was advised to appeal, and that brought the case before Lord Thurlow. After Mr. Kenyon and the other counsel had been heard, Lord Thurlow was satisfied the decree was right ; but on his asking Mr. Scott, who then appeared before him for the first time, what he had to say in favor of the claim of the heirs-at-law, Mr. Scott argued the case of his clients so ably, that Lord Thurlow said, I thought at first that Mr. Scott was clearly wrong. ' 2 Barn, and Aid. 158, 165. = By Lord Hardwioke, 3 Atb. 306. * 1 Barn, and Cr. 179. * 1 Bro. C. C. 503, cited 6 Vea 396. Digitized by Microsoft® HEAEING AEGUMENTS OF COUNSEL. 359 hut now I see lie is riglit ; and tTien the decree was made, wMch has since been followed in all the cases which have been cited." ^ [In Luntley v. Battine,^ the senior counsel for the defendant gave up the point, but the junior counsel so pressed the argument as almost to incur the dis- pleasure of the Lord Chief Justice EUenborough ; at length Mr. Justice Bailey induced the Chief Justice to listen to the argument, which, having done, the Chief Justice united with the rest of the court in deciding for the defendant.] In this place it may be mentioned, that a re-hearing of a case in chancery has in several instances had the effect to cause a judge to reverse the decree, which he had, on a former hearing, made in the cause.^ [In Briggs v. Davis,* the Court of Appeals, on a bill to redeem, decreed a redemption to the appellant ; the appellant, being dissatisfied with the terms on which the redemption was decreed, moved for a re- argument ; the motion was denied, but the court inti- mated that it had erred in decreeing a redemption, and that the respondent might move for a re-argument to have the judgment changed to a judgment of affirm- ance.® It is curious to reflect what would have been the effect of this error, supposing no re-argument had been moved for. [Where a constitutional question is involved, a re- argument will be ordered, unless a majority of the whole court concur in the decision.® " It would be in- decorous to allow what would be substantially an ap- ' Daniell, 228. Pickering v. Lord Stamford, 3 Ves. ' 2 Barn, and Aid. 234. 336. ' Stephens v. Stephens, 2 P. W. * 20 N. Y. 16. 323 ; Walmesley v. Booth, 2 Atk. 25 ; » 21 N. T. 574. Galton V. Hancock, ibid. 424-439 ; ° Briscoe u. Bank of Kentucky, 8 Digitized by Microsoft® 360 HEAEIKG AEGUMENT8 OF COUNSEL. peal from one set of judges to another set of judges of the same court. Unless, therefore, it is alleged that the former court overlooked some material fact or statute, or failed to notice some important legal ques- tion or recent decision, it would be subversive of every good end by granting a. re-argument to subject its de- cisions to a new examination by a new set of judges." ^] An argument of counsel has frequently occasioned the praise of the bench, and sometimes even the court's expression of its obligation to counsel.'' In one in- stance, " the court observed that tire question had been , very admirably argued ; " and on an after occasion expanded this observation by remarking, — "One point in this case is of considerable importance, and of no inconsiderable difficulty. If we saw any hope of ob- taining better information, we should wish it to be ar- gued again, but it has been extremely well argued on both sides, and every topic has been brought forward which could bear on this point." * Another instance is, where Lord Ellenborough began his judgment by saying, — " This case has been argued with great in- dustry and learning; and the court cannot but feel obliged to the gentlemen who have argued it, for the pains which has produced so much learning." * In a third case. Lord Mansfield said, " the court were very much obliged to the gentlemen, for taking so much pains in their arguments ; and he thought nothing could be added to them : therefore there was no need of any further argument." ^ A fourth case offers a Pet. 118 ; and see N. Y. v. Miln, 9 Pet. = 2 Durn. and E. Y2 ; 6 Vea. 81S. 85.i ' 5 Taunt. 668, 669, 3 Barn, and ' McGarry v. Board of Supervisors, Cr. 322. 1 Swe. 219 ; and see Newell v. Wheeler, * 1 Maule and S. 661. 4 Rob. 190 ; Trinity Church v. Higgins, » 5 Burr. 2T85. id. 372; Mount v. Mitchell, 32 N. T. 702. Digitized by Microsoft® OPINIOK OF ANOTHER JUDGE. 361 striking singularity in the happy medium there hit. A proposal for a second argument, Lord Mansfield met with this observation, — that the 'cause " had been ex- tremely well argued by the gentlemen on both sides; who had both of them argued like lawyers, and had not said a word too much or too little." ^ [Perhaps as handsome a compliment, as was ever paid by the bench to the genius of the bar, was given, in the language of Chief Justice Marshall, in overruling a position of "William Pinkney, — " With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn, exhibiting this vessel and her freight as forming a sin- gle figure, composed of the most discordant materials of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the picture was presented, that it required the exercise of that cold investigating faculty, which ought always to belong to those who sit on this bench, to discover its only imper- fection, its want of resemblance." ^] SECTION VI. OF OBTAINING THE OPINION OF ANOTHER JUDGE, OE COUKT. A COUKT of law sometimes obtains the opinion of all the judges of the other law courts, on a question which it has to decide. An instance of this desire of assistance, is Calvin's case ; of which Coke, who re- ports it, says, — " After this case had been argued in the Court of King's Bench at the bar, by the counsel ' 3 Burr. 1432. " The Nereide, 9 Cranch, 480— 3d Curtis' Decisions, 418. Digitized by Microsoft® 362 OPINION OF ANOTHEE JUDGE. learned of either party, ttie judges of that cdurt, upon conference and consideration of the weight and im- portance thereof, adjourned the same (according to the ancient and ordinary course and order of the law) into the Exchequer Chamber, to be argued openly there, first by the counsel learned of either party, and then by all the judges of England." ^ And in a com- paratively modern cause. Smith v. Richardson, which came before the Court of Common Pleas on a case made at the assizes, and reserved for the opinion of the court, " this being a new case, and a case of great consequence, the court thought proper to desire the opinion of the rest of the judges, not only to guide their own judgment, but that there might be a uni- formity of opinion for the future in a matter of so great moment."^ " In many cases, where the law has been considered differently in the two courts of king's bench and com- mon pleas, the practice has been to call in the opinion of the judges to determine which was right." * In the Court of Chancery, the Lord Chancellor, in order to determine a question, v^hich there arises, and which is a legal, as distinguished from an equitable, question,* or, in other words, is a question, or point of common law,® a mere point of law,^ or a mere question in law,'' very commonly seeks the opinion on that question of a court of common law, the king's bench, or common pleas.^ ' T Co. 2. « 1 Vea. Sen. 36. ' Waies, 20. ' 2 Atk. 250. » By Graham, B., 1 M'Clel. and Y. ' 8 Atk. 654; 1 Ve3. Sen. 35; 1 698. Swaust. 313 ; 2 Swanst. 273, 274, 276 ; *S Atk. 654; 2 Swanst. 274; 6 2 Burr. 1133, 1134; 4 Burr. 2377, Barn, and Cr. 413, 420; 3 Bl. Com. 2378; 1 W. Bl. 222. And see 1 Me- 452. riv. 494. ° 4 Burr. 2377, 2378. Digitized by Microsoft® OPIKION OF ANOTHBE JUDGE. 363 Suet opinion is sought by sending to the court, and to be there solemnly argued, ^ a case, namely, a state- ment of the circumstances, out of which arises the question required to be determined. The court of law then gives its opinion thereon, in its written cer- tificate, which it returns to the chancery. In similar circumstances, and in like manner, the Master of the EoUs,^ or the Vice-Chancellor,* obtains the opinion of a court of law. The opinion of a court of law it is sometimes proper so to require, when the question is a new. case,* a new point,^ or a question on which there is no decision,' or not one case already in point determined,'' a question that is one of great nicety,® or on which the opinion of one judge is one way, and that of another judge the other,' or the question being in a suit to oblige a purchaser to specifically perform his contract of purchase, conflicting authorities create too much doubt in the question, to make it fit that the Court of Chancery should bind the purchaser, without the opinion of a court of law." The question so proposed to a court of law must, it seems to be considered, be a legal, as distinguished from an equitable, question." In Bayley v. Morris, in the year 1796, a case was directed for the opinion of ' 1 Ves. Sen. 85. * 1 Ves. Sen. 35 ; 4 Bro. C. 0. 371. ' 1 Enss. 291 ; 6 Barn, and Cr. ' 3 Atk. 554. 403. Daintiy v. Daintry, 6 Durn. ' 2 Swanst. 2^3. and E. 307, and in the year 1795, ap- ' 2 Atk. 250. pears to be the firat instance in which ' 1 Euss. 291. the Court of King's Bench ever certi- " 7 Ves. 234. fled their opinion on a case sent there '° 5 Madd. 319, 320, 5 Barn, and from the Master of the Eolls. In Aid. 661. 1743, in the case of Colson v. Colson, " 6 Barn, and Cr. 412, 413, 420, it was by "an idle formality "refused. 422; 1 Dow and 01. 296, 299, 300, 2 Atk. 247, 248, 6 Duru. and E. 313. 301; 2 Euss. 489; 2 Sim. and St. 553; ' 2 Sim. and St. 544; 3 Barn, and 3 Bl. Com. 452. Cr. 706. Digitized by Microsoft® 364 OPINIO}? OP AHOTHEE JUDGE. the Court of King's Bench, upon the question,, what estate a particular person took in certain premises under a settlement. And on the ground that the legal estate was in trustees, that court declined to give any opinion.^ In Parsons v. Parsons, in the year 1800, a case was sent to the Court of King's Bench ; but "in consequence of its being stated as a trust," in other words, " in consequence of the fund being stated to be in the hands of trustees," that court refused to answer it.* In Houston v. Hughes, a case was sent by the Master of the Rolls for the opinion of the Court of King's Bench. It arose on the construction of a will ; and, besides a question relative to the estate limited to trustees, several other questions were sub- mitted to the court. In the early part of the argu- ment, Bayley, J., asked counsel (Denman), whether this court were expected to certify what estates the plaintiffs would have taken, if the legal estates had not remained in the trustees. Denman said that the court did so certify in Murthwaite v. Jenkinson,^ and that the questions in this case were framed in a simi- lar manner, for the purpose of obtaining the opinion of this court upon that supposition. Bayley, J., said, the old course used to be, for the Court of Chancery to state the case as if all the estates were legal estates ; and that he felt a great difficulty in saying that a court of law should give an opinion, as to what would have been the effect of the will if certain equitable devises had been legal devises. The old course inva- riably was, so to mould the case in a court of equity, as to present it to a court of law as a simple legal question. After this intimation from the court, the ' 4 Ves. 188, 790, 193, 794. ° 2 Barn, and Cr. 357. = 5 Ves. 581. Digitized by Microsoft® OPINION OF ANOTHBE JUDaB. 365 only question discussed was, whether the trustees took the legal fee in the freehold estates. At the conclu- sion of the arguments of counsel, Bayley, J., said—" A court of law sits for the purpose of giving opinions upon legal questions only. If a will is so framed as to present for consideration questions upon equitable estates, it is peculiarly for a court of equity to say in what manner that will should be moulded, so as to present a legal question for the consideration of a court of law. And if there be any difficulty in con- verting the equitable estates in the will into legal es- states, that is for the the consideration of a court of equity, where the effect of equitable devises is under- stood. It seems to me, that if the Court of Equity wish to have our opinion as to those parts of this will which give equitable interests, it is for that court so to mould the will as to present a legal question for our consideration. If, therefore, we should be of opinion in this case that the legal estate in fee is vested in the trustees, we shall certify to that effect to the Court of Equity, and forbear answering the other questions." In the certificate, which the court afterward sent, the court, having expressed their opinion that the trus- tees took under the will an estate in fee simple, sub- joined — " As we are of this opimon, the interests of the other parties mentioned in the questions are equi- table interests only, and we have not given any opin- ion as to them." ^ This understanding of the subject is sustained by Lord Eldon's opinion, that, in Duffield v. Elwes,^ the Court of King's Bench properly gave no opinion as to the resulting trust there, " that being only for the con- ' 6 Barn, and Cr. 403, 412, 413, 420, ' 3 Barn, and Cr. Y06, 5 Dowl. and 422; 9 Dowl. and Ryl. 464. Eyl. 764, 2 Sim. and St. 544. Digitized by Microsoft® 366 OPINION OF ANOTHER JUDGE. sideration of a Court of Equity." ^ For in the same case, Duffield v. Duffield, in the House of Lords, Lord Eldon remarks, — " It is clear that a Court of Equity can call for the opinion of the courts of law, by stating cases for that opinion; and then the courts of law consider what alone it is proper for them to consider ; that is, to whom the legal estate belongs, or what amounts to a legal estate. If an estate is given to A. B., in trust for C, the court of law has only to consider the question with reference to A. B., but the trust be- longs to the jurisdiction of the Equity Court." ^ Formerly a practice of the common law courts was, not to give in court the reasons of their opinion, which they returned to the Court of Chancery.^ Burrow, reporting a case where, in 1Y56, the Court of King's Bench certified their opinion to the Court of Chancery, notes that " the course has always been, for the judges not to give any reasons in court, upon a case sent out of chancery for their opinion." * And, reporting a case, in which, in 1761, the King's Bench returned a certifi- cate, he here also subjoins, — "Agreeable to ancient usage, upon cases referred out of chancery, the court did not give the reasons of their opinion, nor mention the ground upon which they formed it." " In the same case. Lord Mansfield pursued this usage, ex- pressly as " the established practice of the court." ° At the same period, however, it appears that some- times the reasons of the court's opinion were given in the certificate itself.'^ But it was not usual so to give ' 1 Dow and CI. 296, 300, 301. ' 2 Burr. 1134. And see 2 Sim. and St. 553. » 1 W. BL 254. And see 3 Durn. » 1 Dow and CI. 299. and E. 96. ' 1 Burr. 51 ; 2 Burr. 719, 1134; '.Gore v. Gore, 2 P. W. 63, 64, 9 1 W. Bl. 254; 3 Wils. 13; 3 Dam. Mod. 6, 10 Mod. 501 ; Colson u. Colson, and E. 96. 2 Atk. 260. * 1 Burr. 50, 51. Digitized by Microsoft® OPINION OF AKOTHBE JTJD&E, 367 them.i ["Lord Eldon, when Chief Justice of tte Common Pleas, introduced the excellent custom of giving reasons for the certificate of tlie judges upon a case from a Court of Equity upon a legal question ; but when Lord Chancellor, he so carped at the reasons of Lord Kenyon and other common law judges, that they refused to do more than simply to give an answer in the affirmative or negative to the questions put to them."^] On the certificate in the case in 1756, above mentioned. Burrow remarks, that it " seems carefully penned, to mark the grounds upon which it was founded." * And the practice of not giving in court the reasons of the opinion has in many later cases been departed from. In 1774, the Court of King's Befich wholly and avowedly departed from that prac- tice, when Lord Mansfield, delivering the opinion of the court, introduced it as follows : — " I found it a custom, in cases sent by tbe Court of Chancery for our opinion, to certify it privately to the Lord Chancellor in writing, without declaring in this court either the opinion itself, or the reasons upon which it is grounded. But I think the custom wrong, as well as unsatisfac- tory to tbe bar : and therefore in the two cases that now wait our certificate, and for the future, we shall declare our opinion in this court." * In a case in 1795, the judges of the King's Bench delivered in court their opinions previously to sending their certificate : Lord Kenyon, who was then Chief Justice, prefacing his opinion by saying, — " We will certify in this case ; but I will now say a few words, to show the founda- ' By Lord Hardwicke, 5 Madd. oxcvii, p. 215 ; Thompson v. Lady 346. Lawley, 2 Bos. and Pul. 303. ' IX Camp. Lives of Chanc, ch. ' 1 Burr. 51. * 'Wright V. Holford, Cowp. 34. Digitized by Microsoft® 368 OPINION OF ANOTHER JUDGE. tion of my opinion." ^ In 1800, tlie Court of Common Pleas, in' like manner, gave their opinions in a case, where Lord Eldon, the Chief Justice, expressly fol- lowed that example of Lord Kenyon, and noticed, it had "not been unusual; upon similar occasions, to mention the grounds upon which the opinion of the court has proceeded." ^ And in 1806, in a case where the Court of Common Pleas gave in court the reasons of the certificate, which they sent to the Lord Chan- cellor, Sir J. Mansfield commenced the delivery of his reasons by observing, — "This case comes from the Court of Chancery. The opinion of the court, there- fore, is not to be delivered in public, but will be certi- fied to the Lord Chancellor. It is usual, however, to state the reasons, upon which the certificate is to*be founded." ^ On one occasion of a case sent to the Court of King's Bench, Lord Kenyon not only ex- pressed in court the grounds of the certificate, but read the certificate in court.* In a recent case, the Court of Common Pleas, after, it would seem, sending their cer- tificate, stated in court the general grounds upon which the answers certified by them had proceeded.^ At the present day, the reasons of the opinion of the court of law are sometimes not given, either in court, or in the certificate sent to chancery.^ The dis- advantage and inconvenience of this practice are pointed out by Sir J. Leach in a late cause, in which ' Lane v. Earl Stanhope, 6 Durn. ° Greenham v. Gibbeson, 10 Blng. and E. 352. 863. ^ Thompson v. Lady Lawley, 2 Bos. ' Murthwaite v. Barnard, 2 Brod. and P. 308. and B. 628 ; Murthwaite v. Jenkinson, = Wright V. Bond, 2 Bos. and P. 2 Barn, and Or. 857 ; Duffield w. Elwes, New Rep. 129. 3 Barn, and Or. 106, 2 Sim. and St. * Daintry v. Daintry, 6 Durn. and 644 ; Duffield v. Duffield, S. C, 1 Dow E. 314. and CI. 268 ; Badham v. Mee, 1 Bing. 695, 1 Mylne and K. 32, 64. Digitized by Microsoft® OPINION OF ANOTHER JUDGE. 369 he had directed a case for the opinion of the Court of Common Pleas." ^ " In this case," his honor observes, " as it is unfortunately" the practice in all cases, the Court of Common Pleas has not assigned the reasons on which its opinion is founded. The practice of the courts of common law not to assign the reasons of their opinions upon cases sent from Courts of Equity is a practice of modern introduction, and it is much to be regretted ; being at once disadvantageous to the public, and inconvenient to the court directing the case, which is deprived by this practice of the assistance it would derive from the opinion of the court of law, were the grounds of such opinion dis- closed. The object of directing a case is, to know the opinion of a court of law, upon the point in question ; not, indeed, that such opinion is to be treated as a decision, but in order that the Court of Equity may be assisted in forming its judgment. It might well be expected, therefore, that the court, which directs the case, should have the advantage of. knowing the grounds upon which the opinion of the court of law is founded." ^ After receipt of the certificate of the court of law, sometimes the Court of Chancery sends the same case to another court ; as to the Common Pleas, if the first time it was sent to the King's Bench,^ or to this court, if before it was sent to the Common Pleas.* The two common law courts have sometimes differed in their opinions." To determine a question of law, the Court of Chan- ' And see 1 Dow and CI. 300. " 1 Turn, and E. 25 ; 1 Dow and CI. ' Badham v. Mee, 1 Mylne and K. 296. In Gore v. Gore, 2 P. W. 63, 64, 54_ the judges of the King's Bench certi- " 1 Dow and CI. 296. fied their opinion against the opinion * 1 Turn, and B. 25 ; 1 Russ. 292, of their predecessors in the court. 34 Digitized by Microsoft® 370 OPINION OP ANOTHEK JUDGE, eery, in the manner mentioned, sends a case for the opinion of the judges. To determine a question of fact, the same court sometimes directs an issue,^ or an action,^ to be tried at law. In other instances, it may- take on itself to decide a question of fact ; ^ and it may sometimes be the duty of the court so to decide it, as where, to try the question, " there must be an account, and the case requires that examination of books, let- ters, and accounts, which cannot conveniently be had in the course of a trial at nisi priusP * Lord Eldon, speaking in the Court of Chancery, says, — "There is no doubt, that according to the constitution of this court, it may take to itself the decision of every fact put in issue upon the record. . . . It is pretty clear, that, courts of equity in ancient times were more in the habit of taking to themselves the decision of questions of fact, than they have thought wise and discreet in later times."^ This opinion, the same learned judge has repeated in these words, — " Beyond all question it belongs to the constitution of courts of equity to decide upon matters of fact, if they think proper. But courts of equity have, for a great number of years, where questions of fact have been disputable, thought it a more proper exercise of their jurisdiction, to have them determined by a jury." * The Court of Chancery is competent to declare an ' Binford v. Dommett, 4 Ves. 'T^S, issue and an action. See also 2 Ves. 762 ; O'Conner v. Coot, 6 Ves. 665, 8 Jiin. 260. Ves. 535 ; Winchilsea v. Wauchope, 3 ' 6 Ves. 6'7l ; 8 Ves. 636 ; 1 Dow Russ. 441 ; 1 Dow and CI. 299, 300 ; 4 and CI. 299, 300 ; 4 Eligh's New Kep. Bligli's New Rep. 4Y0, 471. 470, 471. And see 3 Russ. 451. " Smith V. Earl of Pomfret, 2 Diet. " Anderson v. Maltby, 4 Bro. C. C- 437; Ex-parte Kensington, Coop. 96 ; 429; 2 Ves. Jun. 260, 261. where see a difference between an '6 Ves. 671. ° 8 Ves. 536. Digitized by Microsoft® OPrniON OF ANOTHER JUDGE. 371 opinion on a legal question ; ' and sometimes it may be the duty of the court to declare this opinion, without sending the question to a court of law.^ Lord Eldon instils this duty by observing in the Court of Chan- cery, — " Where there is a clear matter of law, I take it to be very much the duty of this court, to give its opinion on that matter of law." ^ An idea at one time existed, that when the Court of Chancery sent a case to law, the court was con- cluded by the opinion of the judges.^ In Cook v. Booth, Lord Thurlow said, " that sitting as chancellor, when he asked the opinion of a court of law, whatever his opinion might be, he was bound by that of the court of law." And in the same cause he held himself to be bound by the certificate of the King's Bench, to which court a preceding chancellor. Lord Bathurst, had sent a case. And it is observable that Lord Thur- low, so thought and acted, when, at the same time, he said he should be very glad if Mr. Booth would carry the matter to a superior tribunal.® Later judges have, however, considered, and the present understanding appears to be, that the Court of Chancery is not bound by the opinion of the court of law ; ® that notwithstanding such opinion, the Court of Chancery is free to form its own opinion on the case, and by this opinion to frame its decision in the suit.''^ Lord Eldon, in 1818, expressly stated in the Court of 1 Swanst. 327 ; 4 Rnaa. 166 ; Mad. ' Cooke v. Booth, cited 3 Ve3. 208. and Gel. 273; 1 Dow and CI. 296,299, ° 1 Swanst. 320; 2 Sim. and St. 300,302. See 1 Meriv. 494. 556; 11 Price, 18; 6 Barn, and Cr. ' Mad. and GeL 273. 420 ; 1 Dow and CI. 296, 299, 300, 302 ' 2 Enss. 229. 1 Mylne and K. 54. * Gore V. Gore, 9 Mod. 4, 10 Mod. ' Ibid; Prebble v. Boghurst, 1 501; 2 Stra. 958; 2 P. "W. 28. And Swanst. 309, 314, 320; 1 J. Wilson, see 9 Mod. 149; 1 Atk. 350, and 2 156, cited 11 Price, 18. Ves. Sen. 153. Digitized by Microsoft® 372 OPINION OF ANOTHEE JUDGE. Chancery, that " it is clear that this court is not bound by the certificate of the court of law ;" ^ and this state- ment his lordship made in a case, in which he over- ruled an opinion of the Court of Common Pleas.^ Chief Baron Richards, in 1822, noticing this case, and Lord Thurlow's apprehension of the obligation of chancery to abide by the certificate at law, says, — " Now, certainly that is not in the present day consid- ered to be the effect of the. opinion of courts of law on cases sent for their judgment. The present chancellor clearly does not consider himself bound by the certifi cate of the judges of a court of law. In a very recent case,* in which Lord Eldon called in Mr. Justice Abbott and myself, we reviewed the opinion of the Court of Common Pleas, and the result was, that we overruled it."* The same liberty of opposing the opinion at law is maintained by Lord Eldon in the House of Lords, in 1827, where, in a cau.se in which the Vice-Chancellor had sent a case to the Court of King's Bench, and on its coming back he differed from the opinion of that court, Lord Eldon observed on these circumstances, — " It is quite clear, that the equity judge in these cases may differ from the judges of the courts of law, and may decide in opposition to the opinions stated by the common law judges in their certificate. Lord Thurlow once sent a case for the opinion of the Court of King's Bench, and, not being quite satisfied with that opinion when given, he sent to the court again for a better answer. Lord Kenyon was not very well pleased at this proceeding of his friend Lord Thurlow, but the utility of it was mani- fested by the result ; for the court gave a unanimous ,' 1 SwaDst. 320. ' Prebbk w. Boghnrst, above. » Prebbl e v. Boghurst, 1 S wanst. 309. * 1 1 Price, 1 8. Digitized by Microsoft® OPINION OF ANOTHER JUDGE. 373 opinion in contradiction to its former judgment. I myself, on one occasion, sent a case for the opinion of the Court of King's Bench, on the question as to what estate a party took in certain premises, and the court unanimously certified that the party took an estate of freehold. Not being quite satisfied with that opinion, I took the liberty to send the same question for the opinion of the judges of the common pleas, and they unanimously certified that the party took no estate at all. I was impertinent enough to think that they were both in the wrong, and decided on my own view of the case ; and with that decision the parties were satisfied, and.no more was heard of the case."' And in the same cause in which these observations were made. Lord Eldon, in 1828, repeated his opinion, by saying, — " A court of equity may send cases to the judges of common law for their opinion as to the law, and to juries for their opinion as to facts, in order to inform the conscience of the court. But the judges in equity, whether they ask the opinions of the common law judges or not, may decide of themselves, both as to the law and the facts. I mention this, be- cause in looking at some of the common law reports, it seems sometimes to have been thought, that the equity judges knew nothing about law ; and they say, that is only a Chancery decision. The judge in equity sends a case for the opinion of the common law courts. A certificate is returned without stating the grounds of the opinion. Whether that should be altered or not, I do not know ; but in sending to the judges for their opinion in matter of law, or to a jury upon an issue as to matter of fact, it is clear that you reserve to yourself the right to determine finally and judicially ' DuflSeld V. Duffield, 1 Dow and 01. 296. And Beeibid, 302. Digitized by Microsoft® 374 OPHflON OP AKOTHEE JTJDaB. both, as to the law and the facts, . . . It is unde- niable, that if the conscience of the judge in equity is not satisfied, it is his duty to differ from the common law judges." ^ If farther authority be required to sus- tain this doctrine, it is found in a court of law itself. In delivering his opinion in the King's Bench on a case sent by the Master of the Eolls, for the opinion of that cotirt, Bayley, J. said, — " When the court of equity sends a case for the consideration of a court of law, it is not that the court of law is to bind the court of equity, but to assist it in coming to a conclusion on the subject." '^^ At the hearing of a cause in chancery, the Lord Chancellor is not unfrequently assisted by judges of the courts of law. That assistance he seeks to aid him in his decision in the cause ; and the judges, whom he selects for the purpose, then attend in court, and deliver their opinions on the matter submitted to their^ consideration.* By those opinions they advise * the chancellor. To seek this advice Lord Hardwicke considered as a right. Having been assisted by judges in the Court of Chancery, his lordship expresses his obligation to them for their learned advice and assist- ance, " the right to which," he adds, " I esteem one of the greatest privileges belonging to the person, who presides in this court." ^ Sometimes the Lord Chan- cellor is assisted by the Master of the Rolls, as well as • 1 Dow and CI. 299, 300, 802. C. 372, 380; 16 Vea. 92; 1 Swanst. " 6 Barn, and Cr. 420. 814 ; 3 Swanst. 641 ; 2 Buss. 489, 490. = Fry V. Porter, 1 Mod. 300; Duke « 3 Oh. Cas. 28; 1 Atk. 347, 348; of Norfolk's Case, or Howard tr. Duke 2 Ves. Sen. 190; 1 "West's Gas. T. of Norfolk, 3 Ch. Cas. 14.— 3 Ch. Cas. Hardw. 414; IB Ves. Ill, 112; 2 65, 129;. 2 Mod. 86; 2P. "W. 326; 1 Swanst. 457. Atk. 40, 165, 362; 1 Ves. Sen. 349; ' Hervey *. Aston, 1 West's Cas. T. 1 West's Cas. T. Hardw. 379 ; 4 Bro. C. Hardw. 414. Digitized by Microsoft® OPINION OP ANOTHER JUDGE. 375 by judges, or a judge, of a court of law.^ [Lord Clarendon, when Chancellor, " had always two Masters in Chancery to keep him right in matters of practice, and he never made a decree without the assistance of two of the judges." ^ Bishop Burnet, in his Life of Sir Matthew Hale, says, — "He was frequently called into the Court of Chancery to advise the Lord Chan- cellor or Lord Keeper." ] The Chancellor is not bound by the opinion of the judges, whose assistance he has so called in : if the reason of the judges has not convinced him, it is his duty to act according to his own understanding.^ Lord Nottingham exercised this duty in The Duke of Norfolk's case, saying, — "As to the learned judges that assisted me at the hearing, the decree is mine, and the oath that decree is made upon is mine ; their's is but learned advice and opinion. . . . It is my decree ; I must be saved by my own faith, and must not decree against my own conscience and reason." * In a suit instituted in chancery for the execution of the trusts of a will, and in which Lord Eldon ob- jected to sending a case to a court of law, his objec- tion being, — " that it will come back again in a state, which will leave the principal questions undeter- mined," his lordship observed, — "The better way of dealing with such questions as arise here will be, to have them disposed of in a court of equity, assisted by two of the judges. They will help us to determine ' Earl of Chesterfield v. Janssen, 1 Dow and CI. 299, 300, 302. See 1 Atk. 301, 339, 2 Vea. Sen. 125, 1 Mod. 313, 1 Atk. 350, and 2 Ves. Sen. Wils. 286; Burgess v. Wheate, 1 153. Eden, 111, 239, 1 W. Bl. 123, 173. *Duke of Norfolk's Case, or How- ' IV Camp. Lives of the Chanc. ch. ard v. Duke of Norfolk, 3 Ch. Cas. 28, kxix, p. 70. 37, 39, 47, 52, 2 Swanst. 457. '9 Mod. 5, 149; 10 Mod. 502; 1 Digitized by Microsoft® 376 BIAS. the legal effect of the devises ; and I remember cases in which the judges of courts of law, when sitting with the Lord Chancellor, have not scrupled to state their opinion as to the equitable questions." The cause was accordingly heard before Lord Eldon, as- sisted by the Chief Justice of the King's Bench and the Chief Justice of the Common Pleas.^ When the Lord Chancellor seeks the opinion of judges of a court of law, he sometimes obtains it, through a note which he receives from them contain- ing such opinion.^ [ John Campbell, afterwards Lord Campbell, was deputed by the Common Pleas to go as amicus curiae to the King's Bench, and inquire what was the practice there as to taking up causes out of their order, to avoid an anticipated injunction.] In a cause in Chancery, where a question of law depended " upon a principle applying to cases both in this court and at law," Lord Eldon determined to con- sult the judges, saying he would himself "speak to the Common Law judges upon the subject : " on that question, his lordship obtained the opinion of the Courts of King's Bench, Common Pleas, and Excheq- uer, and of the Master of the Kolls, and Vice-Chan- cellor.* SECTION YIT. OF BIAB. There is one kind of bias, which the courts pos- sess, and suffer to incline them in forming the judg- ■ White V. Vitty, 2 Kuss. 484, 489, ton, 19 Ves. 276, Coop. 88, cited Ja- 4 RuB3. 684. cob, 303. ' Dixon V. Ewart, 3 Meriv. 333. ' On bias, or fayor, see, besides the ' Earl Cholmondeley ii. Lord Clin- authorities after referred to, 1 Burr. Digitized by Microsoft® BIAS. 377 ments which, they give. It is a bias favorable to a class of cases, or of persons, as distinguished from an individual case, or person. A bias, which on some subjects sways them is, convenience.^ And whatever the bias, or moving principle, in the courts may be, it is certain that a bias favorable to a class of cases, or of persons, is frequently met with. [ On the trial of a duellist for murder, Mr. Justice Fletcher summed up as follows: — "Gentlemen, it's my business to lay down the law to you, and I will. The law says the killing a man in a duel is murder, and I am bound to tell you it is murder ; therefore, in the discharge of my duty, I tell you so ; but I tell you at the same time, a fairer duel than this I never heard of in the whole course of my life." ^ [It was said by Lord Hobart, — "I commend the judge who seems fine and ingenious, so it tend to right and equity; and I condemn them who either out of pleasure to show a subtle wit will destroy, or out of incuriousness or negligence will not labor, to support the act of the party by the art or act of the law."] A constant wish of the courts is, to favor an heir at law ; ® as where there is " an heir on the one side and a mere volunteer on the other : " * They possess a strong reluctance to disinherit an heir at law : ° " courts always lean in favor of an heir at law capri- ciously disinherited : " ® " Determinations in cases of revocations of wills have always been favorable to the 419, 421, 1 Bos. and P. 614, 3 Bos. and ' 1 W. Bl. 256. P. 456, 2 Ves. Jun. 648, Jacob, 115, 1 * WUles, 570. Turn, and R. 350. » AmbL 645. • 1 Ves. Sen. 13, 14 ; 8 Atk. 524. " By Lord Manners, 1 Ball and B. " O'Flanagan's Lives of the Lord 809. Chancellors of Ireland, Digitized by Microsoft® 378 BIAS. heir at law : " ^ " There are a great many determina- tions touching the revocation of wills, and very nice artificial distinctions are made in favor of heirs at law : " " " It is not to be controverted," says Lord Hardwicke, " but that the favor of courts to heirs at law, I mean judicial favor, has prevailed in some in- stances." ^ Formerly, joint-tenancy of land was favored in a court of law. Holt, C. J., says — "Joint-tenancy is favored in the law ; and the reason of it is, that as the law does not love fractions of estates, no more does it love them in tenures. Now joiut-tenants are but as one tenant ; but in case of tenancy in common all the entire services are multiplied, 6 Co. 1, 2, Bru- erton's case; for which reason joint-tenancy is fa- vored."* Lord Hardwicke states in the Court of Chancery — "It is true, that joint- tenancies are not favored here : as introducing inconvenient estates, and making no provision for families ; and now courts of law also lean against them ; though formerly it was said by Chief-Justice Holt, that they were favored, which was on a technical reason, because the law was averse to multiplication of tenures and services; which being now reduced to socage, and no burthen, the construction is the same in all courts." ® Forfeitures of copyhold estates are " odious in the law," and the courts have always leaned against them.* The old cases, upon the subject of tenant's fix- tures, " leant to consider as realty whatever was an- nexed to the freehold by the occupier ; but in mod- ' By Lord Hardwicke, 1 Wils. 310, * 1 Lord Raym. 631. 3 Atk m, Ambl. Ill, 22'7. ' 1 Ves. Sen. 13, 14; 1 "WUs. 168; = By Wilmot, C. J., 3 "Wils. 13. 3 Atk. 624. ' 3 Atk. 806. ° 3 Dura, and E. 172. Digitized by Microsoft® BIAS. 379 em times tlie leaning has always been the other way in favor of the tenant, in support of the interests of trade, which is become the pillar of the state." ^ The Court of Chancery " leans against considering legacies as specific, because of the consequences." * In construing a will, where a father is making a provision for his children, which is called a debt of nature, the Court of Chancery will strain in their favor.* The courts lean against double portions for chil- dren ; * against " double provisions and double satis- factions." ^ There is a strong disposition in the Court of Chancery, to construe a residuary clause in a will, so as to prevent an intestacy with regard to any part of the testator's property.® The Court of Chancery, observes Lord Camden, " has justly a partiality and predilection to equitable assets, which ought to turn the scale in all cases, where the matter hangs in equal balance." '^ In a hard case, it may sometimes be impossible for the court not to feel for the individual obliged to endure that hardship.^ But it is certain the courts do not permit the mere fact of hardship in a case to outweigh the law of it.' Relative to hardship, the ' 2 East, 90. ' 2 Meriv. 386 ; 1 Euss. 223. ' AmbL 310 ; 4 Ves. 665, 672, 732; ' 1 Bro. C. C, 138, u. ; 1 Dick. 387. 8 Ves. 413. On some advantages and ^ 15 East, 604, 605. disadvantages, -which attend a specific "WiUes, 98; Cowp. 191, 192; 7 legacy, see 1 Vern. 31; IP. W. 640, Durn. and E. 419; 15 East, 605; 4 679, 680 ; 3 P. W. 385 ; Cas. T. Talb. Maule and S. 12 ; 4 Bro. C. C. 124, 152; Prec. Ch. 401; 1 "West's Cas. 519; 1 Ves. Jun. 131, 132; 2 Ves. T. Hardw. 483 ; 2 Ves. Sen. 624. Jtrn. 34, 36 ; 3 Ves. 202; 5 Ves. 581 ; = 3 Atk. 222. 1 Jac. and W. 244 ; 4 Madd. 418 ; 2 * M'ael. 366; 13 Price, 699. Crompt. and M. 53, 54. » 3 Atk. 421. Digitized by Microsoft® 380 BIAS. Bencli uses these, or tlie like/ expressions: "The court is governed by the principle of law, and not by the hardship of any particular case : " ^ " Considera- tions of public policy often outweigh the hardship of particular cases : " * " This may be a case of individ- ual hardship, but the court is bound to proceed upon those principles, which are deemed essential to the general interests of mankind : " * " It is better for the public, that courts should adhere to general estab- lished rules, than that those rules should yield to circumstances of compassion in particular cases, how- ever strong : " ^ " The hardships of a particular case are no foundation for a determination either in a court of law or equity : " ® " It is part of the infirmity of human legislators, that the general rule which they prescribe, will work hardship in particular cases ; and it is for the legislature to afford such relaxation of the rule, as can be done with safety." "^ The following case mentioned by Lord EUenbor- ough is a striking example of hardship, and the inflexibility of the law where it happens. The rule of law applicable to it is, that marriage and the birth of a child, where both these circumstances concur, are a presumptive revocation of a will made before the marriage; but marriage alone does not cause that revocation. " I remember," says Lord EUenborough, " a case some years ago of a sailor, who made his will in favor of a woman with whom he cohabited, and afterward went to the West Indies, and married a woman of considerable substance; and it was held, ' Willes, 458 ; Cowp. 192 ; 7 Dura. ' 1 Scb. and Let 6. and E. 415 ; 1 Crompt. and M. 305. • Willes, 98. " 4 Mania and S. 261. ' 2 Crompt. and M. 53. See ante. ='4Bro. C. C. 124; 2 Ves. Jun. 34. pp. 116, 220. MMadd. 418. Digitized by Microsoft® BIAS. 381 notwithstanding the hardship of the case, that the will swept away from the widow every shilling of the property ; for the birth of a child must necessarily concur in order to constitute an implied revocation." ^ The courts have not one rule for one individual, and a different rule for another, or one for the rich, and another for the- poor.* ["The case of this illus- trious person (Comte d' Artois, afterward Charles Xof France) must be decided on the same grounds, that would operate in favor of the meanest individual." *] It has frequently happened that one of several judges, of whom a court was composed, has declined to give his opinion in a case before the court. He has declined to give it, "for private reasons;"* or " being connected with the parties ; " ® or " being con- nected with one of the parties ; " ® or having, when at the bar, been "counsel in the case,"'' "been con- sulted ; " ^ " concerned," * or " engaged," " in it. Two out of four judges have declined giving any opinion, " as they had been engaged in the case while at the bar." " Tn an instance of this kind. Lord EUenbor- ough said, " that only two judges were in a situation to pronounce any judgment, the other two having, when at the bar, been engaged in the case."*^ One ' 4 Maule and S. 12. »2 East, 272, 389, 478, 620; 3 ' The King v. Lord Cochrane, 3 East, 246, 393. Maule and S. 10. " 2 Bos. and P. New Eep. 461 ; 2 ' Lord Eldon, Sinclair v. Charles East, 665. Phillippe, 2 B. and P. 363. " Doe dem. Wright ii. Jesson, 6 • 4 Bam. and Adol. 29. Maule and S. 103. In this instance, ' 6 Maule and S. 21. the judgment of the remaining two ° 6 Dum. and E. 5. judges was reversed in the House of ' 1 Bam. and AdoL 615 ; 2 Barn. Lords. 2 Bligh, 1. and Adol. 386, 445 ; 1 Brod. and B- " Doe dem. Earl of Jersey v. Smith, 161. 6 Maule and S. 476. In this instance, " 6 Bam. and Or. 686 ; 3 Bam. and the judgment of the court (King's Adol. 10. Bench) was reversed in the Court of Digitized by Microsoft® 382 BIAS. of several judges, composing a court, has, however, given his opinion in a cause before it, notwithstanding the case had been laid before him when at the bar, and at which time he inclined to an opinion contrary to his judgment now delivered.'' On one occasion, after the other judges of the Court of King's Bench had given their opinions. Lord EUenborough ob- served, that " as he had been concerned in the cause, he had forborne taking any part in the deliberation with the rest of the court; but having now heard their opinions, he must declare his entire concurrence with them in the judgment they had delivered.^ Lord Thurlow refused to hear a cause, on, account of the interest his lordship, by virtue of his office, had in the subject. It was heard by the Master of the Rolls ; and, on an appeal from his decree to Lord Loughborough, this learned Chancellor also for the same reason declined hearing the cause. His lordship referred the appeal to two judges of the courts of law, Chief Justice Eyre, and Chief Baron M'Donald ; and, having received the certificate in affirmation of the de- cree, Lord Loughborough affirmed the decree.* [By the Constitution and laws of New York, except in the Court of Appeals, no judge can take part in deciding a question argued when he was not sitting. No judge of an appellate court can take part in deciding a matter determined by him in the court below. And no judge can take part in deciding a case in which he has been counsel, or where he is in- Exchequer Chamber, but the judgment ' 8 Price, 883. of the latter court was reversed in the ' 2 East, 824. House of Lords, where the judgment ' Attorney-General v. Boultbee, 2 of the King's Bench was affirmed. 1 Ves. Jun. 380, 3 Yes. 220. Brod. and B. 9Y, 3 Moore, 339, 2 Brod. and B. 4V3, 5 Moore, 832. Digitized by Microsoft® POSTPONING DELIVERY OF JUDGMENT. 383 terested in the subject-matter, nor can lie act as coun- sel in any suit in whicli lie has acted as judge.^ " It is the duty of the three judges who heard the argu- ment to consult together in relation to the decisions of the questions involved in the motion, in order that each might have the benefit of the views of his breth- ren, to aid him in arriving at a proper conclusion, and doubtless such consultation was had ; it is to be presumed that they discharged their duty in that respectr ^ [ Lord Mansfield tried the case of a wager upon the sex of the Chevalier D'Eon.^ But Justice Burnet refused to try an action of slander 6n a lady for say- ing she had a defect in her person which unfitted her for marriage ; the defendant having justified, on the ground of truth. In Brown v. Leeson,* the court re- fused to try an action on a wager respecting the mode of playing an illegal game.] SECTION VIII. OF P08TP0NTNG THE DELIVERY OF JTrDGMENT. Whebe the court has no doubt, it may often be its duty to give judgment immediately after the argu- ment of a case. Burrow, in his report of a cause, sub- joins to the argument there : — " As this was the first argument, it was expected (as of course) that it would be argued again ; but Lord Mansfield gave his opinion 'Const. Art. VT. §8; 2 R. S. •■' Corning k. Slosson, 16 N. Y. 297. 275, §§ 2, 3, laws 1850, ch. xli, § 2 ; ' DaCosta v. Jones, Cowp. 729. laws 1847, ch. eclxxx, § 81 ; laws 1847, ' 2 H. Bl. 43. ch. cccclxx, § 52. Digitized by Microsoft® 384 POSTPONIKG DELIVBBT OF JUDGMENT. immediately, to the following effect : Lord Mans- field, — ' Where we have no doubt, we ought not to put the parties to the delay and expense of a further argu- ment ; nor leave other persons, who may be interested in the determination of a point so general, unneces- sarily under the anxiety of suspense.' " ^ Under other circumstances, the court very com- monly takes time to consider of its judgment ; ** as in the instances, where the court assigned these reasons for the postponement : — We are of opinion, " the cause should stand over till next term, that it may be prop- erly considered, this [the matter in the cause] being a point of the utfbost consequence : " ® " As this is a matter of very great general importance, it is proper that we should weigh it well before giving any deci- sion : " * " As we are called upon to overrule a sol- emn decision of this court, we will take time to con- sider of our judgment : " ^ "As it is a matter, which affects the proceedings in all the courts, we will confer with the judges of the other courts : " * " We have taken time in this question, as the rules, which affect the conduct of executors, ought to be most seriously considered, because they make precedents in all courts, where the British law extends ; and whatever we pro- nounce will become a general rule in the islands." ' In a cause in chancery, in which Lord Eldon directed a case for the opinion of the Court of Common Pleas, and, not being satisfied with its certificate, his lord- ship was assisted by Chief Baron Eichards, and Mr. Justice Abbott, both of whom differed from the Court ' 1 Burr. 5. " 1 Barn, and Adol. 199. = 8 Taunt. 19 ; 1 Atk. 619. '2 Crompt. and M. U1. s 1 Atk. 40. ' 2 Cox, 276. « 2 Anstr. 614. Digitized by Microsoft® POSTPONING DELIVERY OF JUDGMENT. 385 of Common Pleas, Lord Eldon in postponing his judg- ment said, — " In tlie anxious office of deciding between the discordant opinions of six most able and learned judges, I think it due to the parties to pause and weigh the reasons on both sides, before I give judg- ment." ^ Often a cause is ordered to stand over, to search for precedents ; * or " to look into the cases ; " * or into a particular case, or cases, cited ; * and sometimes for the purpose of a further argument.® At other times the court delays to pronounce judgment, because a similar case is depending in another court, and the judgment is deferred until the decision of that case.® And, under a circumstance of this kind, a judgment has been postponed, to confer with the judges of the other court. This was done in a cause in the King's Bench, relative to the construction of a letter of attor- ney : — " The court said, that though they had no doubt about the case, yet as there was a similar cause (said to be) depending in the Court of Common Pleas on the construction of the same letter of attorney, it would be proper not to decide this case until they had had an opportunity of conferring with the judges of that court on the subject.""^ A case in the King's Bench occurs, which stood over more than four years for the judgment of the court, it being argued in Hilary Term, 1807, when it was directed to stand ' Prebble v. Boghurst, 1 Swanst. 495 ; 3 Ves. 335, 336 ; Ambl. ed. Blunt, 314, 32Y. 837. ' 1 Mod. 307 ; 1 Atk. 40; 3 Atk. ' Cowp. 144, 154; 16 East, 268. 619 ; a Russ. and M. 142. " 2 H. Bl. 13 ; 9 Bing. 429 ; 2 Ball ' 1 Burr. 347 ; 4 Durn. and E. 98 ; and B. 511. See also 3 Ves. 300, and 8 Durn. and E. 48; 2 Maule and S. 1 Crompt. and M. 81. 414; 2Anstr. 539; 3 Ves. 363. '6 Dura, and E. 593. And see * 2 Durn. and E. 450 ; 4 Durn. and Pickup v. Wliarton, 2 Crompt. and M. E. 98 ; 4 Bro. C. C. 7 ; 1 Ves. Jun. 405, 406. 35 Digitized by Microsoft® 386 POSTPONING DELIVEEY OF JUDGMENT. over for consideration, " in consequence of a writ of error brought upon a judgment in the Court of Com- mon Pleas in a case similar to this, and on the author- ity of which determination this case was said much to depend." Lord Ellenborough, delivering the judg- ment of the court in Michaelmas Term, 1811, ob- served, — " That writ of error was argued and judgment given thereon in the House of Lords after the last Trinity Term ; it is therefore fit that judgment in this case should no longer be suspended." And it may be added, that, in deciding this case, the court relied principally, as on an authority precisely in point, on the case in the House of Lords, the pendency of which was the occasion of its judgment being deferred.^ In a case, that was an action on a ransom bill, counsel, who was retained for a second argument, offering to make inquiry, in the next vacation, into the practice of France and Holland, the court (Lord Mansfield being one of the judges) allowed the cause to stand over upon the point of that inquiry.^ In another action on a ransom bill, the court wished the case to be spoken to by civilians, Lord Mansfield saying, "We can have no light from our own law." On a subsequent day, the case was ac- cordingly so argued.' In several instances in chancery, the court has ordered a cause to stand over, for the purpose of ob- taining the opinion of a civilian on a particular ques- tion.* A case may be mentioned, where, after the argu- ' Doo V. Moore, 14 East, 601. * Hurst v. Beach, 5 Madd. 356 ; = Rioord v. Bettenham, 1 W. Bl. Cawthorn v. Chalie, 2 Sim. and St. 663. 127; Fowler v. Richards, 5 Russ. S9. ' Aiithon V. Fisher, 3 Dougl., ed. Frere & E. 166. Digitized by Microsoft® POSTPONING DELIVEEY OF JUDGMENT. 387 ment was closed, tte court gave their opinions upon some of the points urged at the bar, and on other points took time to consider of their judgment.^ On one occasion, after the rest of the court had delivered their judgments, Grose, J., desired to have farther time to consider of his opinion.^ It is an observation of Sir T. Clarke, — " There are two things, against which a judge ought to guard, — precipitancy and procrastination. Sir Nicholas Bacon was made to say, which I hope never again to hear, that a speedy injustice is as good as justice which is slow."* [In Van Doren v. Mayor of N. Y.,* Chancellor Walworth apologizes for his decision in Meserole v. Mayor of Brooklyn,^ on the ground that, "in the hurry of business," he overlooked a distinction which he " had recognized and acted upon in other cases." [When Littleton prayed judgment in a quare im- pedit, Year Book, Mich. 35 Hen. VI, Prisot, Chief Jus- tice, protested : " I marvel mightily that you are so hasty in this matter ; for it is a weighty matter, and I have seen similar matters pending for twelve years, and this matter has been pending only three-quarters of a year."] Willes, C. J., commences his judgment in a cause by saying, — " Delaying justice and denying justice are considered as the same thing in Magna Charta. And therefore as I have no doubt in this case, I shall now give my opinion." ® In a cause " of moment," in which Lord Notting- 'The King «. Croft, 3 Barn, and Lord Loughborougli calla "aBtrange ^j^ -j^tj]^ determination," and affirms to be " oon- " 2 Bum. and E. STl. trary to every principle." 3 Ves. 70. > 1 Dick. ill. Possibly Sir N. ■* 9 Paige, 389. Bacon put his saying into practice, ia °-8 Paige, 199. a case, which he decided, but which ' 2 Kenyon, 478. Digitized by Microsoft® 388 POSTPONINa DEIilVEEY OF JUDGMENT. ham was assisted in chancery by three judges, and, after hearing their opinions, seeing they differed from him, gave himself some time to consider before he took any final resolution, and afterwards permitted counsel to argue the case over again, saying, " for this is a cause that deserves patience ; " and when all this was done, he was at the bar desired to consider far- ther of the case ; his lordship said, — " I would do so if I could justify it ; but expedition is as much the right of the subject, as justice is ; and I am bound by Magna Charta nulli negm-i, nulli differe justitiamr ^ [ " It was his (Judge Story's) habit, after hearing an argument in any case of importance, to defer the investigation of the matter, until his mind had cooled after the excitement of the hearing, and freed itself of all bias produced by the high colorings of the advo- cate, and the eloquence of his appeals ; leaving in his memory only the impressions made by the principal facts and the legal reasonings ; of which also he took full notes — after this, he carefully examined all the cases cited and others bearing on the subject, review- ing and fixing firmly in his mind all the principles of law which might govern the case. By the aid of these principles, he proceeded to examine the question on its merits, and to decide accordingly, always first establishing the law in his mind, lest the hardship of the case should lead him to an illegal conclusion."^ This practice was the reverse of that attributed to Ch. J. Pendleton, who first decided in his own mind which party ought to succeed, and then proceeded to look up authorities to support this conclusion. ■ Bute of ITorfolk's case, 8 Ch. ""i. Story's Life and Letters, 683. Cas. 1, 14, 3Y, 52. Digitized by Microsoft® POSTPONIKG BBLIVERT OF JUDGMENT. 389 [ " In great and important cases," said Lord Eldon/ " I have endeavored to sift all the principles and rules of law to the bottom, for the purpose of laying down, in each new and important case as it arises, something, in the first place, which may satisfy the parties that I have taken pains to do my duty; something, in the second place, which may inform those who, as counsel, are to take care of the interests of their clients, what the reasons are upon which I have proceeded, and may enable them to examine whether justice has been done; and further, something which may contribute towards laying down a rule, so as to save those who may succeed to me in this great situation* much of that labor which I have had to undergo, by reason of cases having been not so determined, and by reason of a due exposition of the grounds of judgment not hav- ing been so stated." [But what, perhaps, still more raised his (Lord Chancellor Nottingham's) judicial fame, was the ad- mirable habit he adopted, and which has been revived and recommended by illustrious judges still living — of writing the judgment to be delivered in every case of importance — whereby the judge is forced to appre- hend accurately both facts and law ; becomes fully ac- quainted with all difficulties and objections before he has publicly committed himself by any opinion, and lays down and qualifies his positions with more nicety than it is possible for him to do in an extempore speech." ^ [" The faults of Lord Eldon's judicial style," says Lord Campbell,* " are very much to be ascribed to the ' A.tty. Gen. a. Skinner's Co. 2 'X Lives of the Chan. oh. coxiii, Russ. 437. p. 236. ' IV Camp. Lives of the Chano. ch. xcii, p. 2S0. Digitized by Microsoft® 390 POSTPONING DBLIVEET OF JUDGMENT. circumstance, that in delivering his opinions he always extemporized, not even making use of notes. If the advice of an individual so humble as myself could have any weight hereafter, I would most earnestly im- plore judges in all cases of importance to prepare written judgments. The habit not only insures a minute attention to all the facts of the case, and a calm consideration of the questions of law which they raise, but is of infinite advantage in laying down rules with just precision, and it has a strong tendency to confer the faculty of lucid arrangement and of correct composition. How inferior would Lord Stowell's judgmente have been, if blurted out on the conclusion of the arguments at the bar, and taken down by a reporter ! Sir William Grant's, hardly inferior in merit, were recited as if the produce of his mind at the moment ; but it is now ascertained that they had been carefully written out, revised, and committed to memory. Unless in one or two cases, which Lord Eldon decided by consent of parties after he resigned the Great Seal, he never put pen to paper in prepar- ing his judgments. In consequence, it has been re- marked by a severe critic, that ' Lord Eldon's judg- ments lie, like Egyptian mummies, embalmed in a multitude of artfully-contrived folds and wrappers.' " [The cause, or perhaps the pretext, for Lord El- don's delays, was a principle on which he professed to act, that it was always his duty to read the bill, answer, deposition, and exhibits, and to consider not only the facts stated and the points made at the bar, but all the facts in the cause, and all the points that might be made on either side. I know, said he, it has been an opinion — a maxim — a principle — ay, an honest principle, on which several of those who have presided in this court have acted, that a judge is Digitized by Microsoft® POSTPONING DELIVERY OF JUDGMENT. 391 obliged to know nothing more tlian counsel think proper to commtinicate to Mm, relative to the case. But for myself, I have thought and acted otherwise, and I know, yes, I could swear upon my oath, that if I had given judgment on such information and state- ments only as I have received from counsel on both sides, I should have disposed of numerous estates to persons who had no more title to them than I have ; and believe me that I feel a comfort in that thought, a comfort of which all the observations on my con- duct can never rob me. ^ [Lord Campbell * questions the propriety of Lord Eldon's professed judicial habit of not trusting to counsel, and gives his reasons as follows : — " In the first place, it is impossible. In the vast majority of cases which come before a judge, ... he must take the contents of written documents from the coun- sel, trusting to their honor and accuracy, and to their reciprocal supervision. Secondly, it would be exceed- ingly dangerous for a judge to be in the habit of de- ciding upon facts or points of law of his own discov- ering ; for if noticed at the bar, they would very likely have been found capable of being easily answered or explained away. Thirdly, such a habit must breed a morbid propensity to doubt, and it holds out a tempt- ing bait to procrastination, by affording a ready ex- cuse for idleness. [" It is the duty of a judge, in grave and difficult cases, to take time to consider ; but it is his duty, as soon as is consistent with due deliberation, to make up his mind and to deliver judgment ; further delay not only unnecessarily prolonging the suspense of the ' X Campbell's Lives of the Chanc. " X Lives of the Chanc. ch. ccxiii, ch. ccxiii, p. 229. . p. 232. Digitized by Microsoft® 392 POSTPONINa DELIVERY OF JUDGMENT. parties interested, but rendering the judge less and less qualified to decide rightly, as the facts of the case escape from his recollection, and the impression made upon him by the arguments at the bar is effaced, to say nothing of the double time and labor required from him in vainly trying to make himself master, a second time, of what he once thoroughly understood." ^ [We now proceed to give a decision of Crozier, J., in Searle v. Adams,^ a style we recommend rather to be avoided than imitated : — [" In this ease, the irrepressible Statute of Limita- tion is again presented for consideration. For some years past, upon the disposition of each succeeding case involving the construction of this statute, it was considered, by bench and bar, that fiction itself could scarcely conceive of a new question to arise thereun- der ; but as term after term rolls around, there are presented new questions, comparing favorably in point of numbers with Falstaff 's men in buckram, thus add- ing to the legions that have gone before a new demon- stration of the propriety and verity of the adage, that 'truth is stranger than fiction.' With the heat of ninety-eight degrees of Fahrenheit in the shade, and the newspapers teeming with reports of the ravages of our great common enemy, who, the more effectually to accomplish his double purpose of capturing the im- prudent and frightening the timid, has assumed the form of the Asiatic monster, it might be supposed by the unthinking that the consideration of such ques- tions would be entered upon rather reluctantly. But we beg to disabuse the public mind of any such heresy. Cases might be imagined where ' smashes ' ' X Lives of the Chano. ch. ccxiii, " 3 Banks, 618. p. 226. Digitized by Microsoft® POSTPONING DBLIVEBT OF JUBGMENT, 393 would not stimulate, nor 'cobblers' quicken, nor 'juleps' invigorate; but a new question under our Statute of Limitation, in coolness and restoring power, so far exceeds any and all of these, that, when one is presented, the 'fine ould Irish gintleman's' resurrec- tion under the circumstances detailed in the song be- comes as palpable a reality as the ' Topeka Constitu- tion' or 'the territorial capital at Mineola.' The powers of a galvanic battery upon the vital energies are wholly incomparable to it. So that the consider- ation of this case upon this day of wilted collars and oily butter should not entitle the court to many eulo- gies for extraordinary energy in the fulfillment of its duties Counsel was understood to inti- mate that some mischievously-disposed persons, with a diabolical intent not clearly revealed, while organized as the Legislature of the State, had made a violent and unwarrantable onslaught upon the Constitution — that Constitution which this court, as a tripedal pier, is exerting its utmost endeavors to support — that Constitution which, not only from patriotic and moral, but from alimentary considerations as well, we are bound to maintain and defend. Being in a some- what ' melting mood ' to-day, we would be pleased to gratify counsel by adopting his fears," etc.^ [The learned justice then goes on to decide the case, and concludes that, " it is as transparent as the soup of which Oliver Twist implored an additional supply," that the case does not come within the statute. If the reader desires a further specimen of Judge Crozier's eloquence, we refer him to his remarks, in Craft v. The State, in defending the somewhat ob- vious proposition, that a jury is not bound, as matter ' 3 Banks, 480. Digitized by Microsoft® 394 CONSEQUENCES OP A JUDGMENT. of law, to disbelieve the evidence of a prostitute ; or, to use his own words, that it ought not to be said that a woman " pours out from her heart at Venus's shrine with her virtue every other good quality with which in our thoughts we endow her sex," and this "whether she habitually flaunts her frailty in tie face of the world, or attempts to hide it in retiracy, or garnish it with garlands of good works." [In conclusion, we give another specimen of judi- cial eloquence : — " And for one, I rejoice to see edifices built, although they may be ' with the granite of Lit- tleton, the cement of Coke, the trowel of Blackstone, and the masonic genius of a hundred chief justiciaries, and covered with the moss of many generations,' sway- ing beneath the sturdy blows so unsparingly applied by the hand of reform." ^ ] SECTION" IX. OF LOOKnTG FOEWAED TO THE OONSEQUENOKS OF A JUDGMENT. A PABTicuLAE suit oftcu iuvolvcs the determination of a general point ; in this point persons, who are not parties to that suit, are interested ; and the court's decision may produce general or public inconvenience.^ In such cases, therefore, a duty of a court is, to look forward to the consequences, which may result from its decision.^ Lord Redesdale, speaking of a case be- fore him, says, — " In all cases of this sort, we should look a great deal more at the consequences, as they may affect other parties, than at the parties in the par- ' LumpMn, J., 1 Geo. R. 19. 593 ; 2 Brod. and B. 506, 501, 597. ' 1 Burr. 5, 6 ; 8 Durn. and E. 592, See ante, p. 213, 214. = 7 Taunt. 496. Digitized by Microsoft® CON SEQUENCES OF A JUDGMENT. 395 ticular cause ; and it is verj'- difficult to consider a case properly in a court of justice, if the particular circum- stances be its sole object ; we must look to those gen- eral cules and principles, whicli shall guide the conduct of other persons, and enable the court to administer justice." ^ And, in a cause in the House of Lords, Lord Eldon observed, — " It is not sufficient to consider merely the rights of those, who are immediately inter- ested in this case. . . . We are bound to look at this case, with a view to its effect upon the interests of all other persons." ^ And in the Court of Chancery the same learned judge has said, — " There is one con- sideration, of which this court should never lose sight in every decision which it makes, viz., what is to be the effect of its determination, not in the existing case alone, but upon subsequent similar cases ; that a deci- sion, foimded on misapprehension, may not be applied as a principle to cases of the same class, which may hereafter arise." * Inconveniences, that have arisen from a particular decision, have occasioned the following observations : — " I strongly felt at the argument," says Lord Eldon, in a bankruptcy case, " that if they, who decided Ex-'parte Crisp,* had been aware of the inconveniences, that de- cision would occasion, it would not have been so de- cided." ^ And a remark of Chief Justice Abbott is, — "I cannot help thinking, that if Lord Kenyon had anticipated the consequences, which have followed from the rule laid down by him in Lawson v. Weston,^ he would have paused before he pronounced that de- cision. ^ ' 1 Sch. and Lef. 192. ' Buck, 10, 11. » 1 Dow and CI. 297. " 4 Espin. 56. ' 2 Glyn and J. 178. ' 3 Barn, and Cr. 471. * 1 Atk. 133. Digitized by Microsoft® 396 CONSEQUENCES OE" A JUCGMEKT. [" The case, perhaps, may be hard, but the law has made it so . . . So is the law ; and the alteration, if desirable, is the proper work of the legislature only." ^ " "We are told by the defendant's counsel that the con- clusion at which we have arrived would disturb many titles. If that be so, we cannot help it ; ... we have no choice but to redress injuries when they are judicially brought before us." '^ Fiat justitia ruat ccBlum, said Lord Mansfield, in Somerset's case * (A. D. 1772). The phrase is not original with his lordship ; it appears in Ward's Simple Cobbler of Aggawam, first published (A. D. 1745). [The case of Margate Pier Company v. Harman * was decided mainly on the argument ah inconveniente. In Eing v. Mott,"* it is said, — "The court must be governed by the exercise of its discretion by what it is apparent will be the consequences." " To hold otherwise would be to disturb and unsettle a vast number of titles within this State ; which is a con- sideration entitled to much weight in giving the act an interpretation." ^J • Lord Chancellor Talbot, Heard v. • 3 Barn, and Aid. 266. Stamford, Cas. Temp. Talbot, 173. <■ 2 Sandf. 684. 'Brohson, J., Sharp v. Shear, 4 "Lynch v. Livingston, 6 N. T. Hill, 91. 432. " Lofft. n. Digitized by Microsoft® APPENDIX. Digitized by Microsoft® Digitized by Microsoft® APPENDIX. I. Aechdeacon Palet's Accotjnt OF*rHE Causes of the Ntt- MEEOTJS UnCEETAINTIES AND DIFFICULTIES AeISING IN THE Administeation of Justice.* To a mind revolving the subject of human jurisprudence, there frequently occurs this question ; TTAy, since the maxims of natural jiistioe are few and evident, do there arise so many doubts and controversies in their applicq^tion ? Or, in other words, how comes it to pass, that although the principles of the law of nature be simple, and for the most part sufficiently obvious, there should exist, nevertheless, in every system of municipal laws, and in the actual administration of relative justice, numerous uncertainties, and acknowledged difficulty ? Whence, it may be asked, so much room for litigation, and so many subsisting disputes, if the rules of human duty be neither obscure nor dubious ? If a system of morality, con- taining both the precepts of revelation and the deductions of reason, may be comprised within the compass of one moderate volume ; and the moralist be able, as he pretends, to describe the rights and obligations of mankind, in all the different re- lations they may hold to one another ; what need of those codes of positive and particular institutions, of thoses tomes of statutes and reports, which require the employment of a long life even to peruse ? And this question is immediately connected with the argument which has been discussed in the preceding paragraph : for, unless there be found some greater uncertainty in the law of nature, or what may be called natural equity, when it comes to be applied to real cases and to actual adjudication, than what appears in the rules and principles of the science, as delivered in the writings of those ■■ Moral and Political Philosophy, book VI, c. viii. Digitized by Microsoft® 400 APPENDIX. who treat of the subject, it were better that the determination of every cause should be left to the conscience of the judge, unfettered by precedents and authorities ; since the very pur- pose for which these are introduced, is to give a certainty to judicial proceedings, which such proceedings would want without them. Now, to account for the existence of so many sources of litigation, notwithstanding the clearness and perfection of natural justice, it should be observed, I. That treatises of inorality always suppose facts to he ascertained ; and not only so, hut the intention likewise of the parties to he hnown, amd laid hare. For example : when we pronounce that promises ought to be fulfilled in that/sense in which the promiser ap- prehended, at the time of /making the promise, the other party received and lAiderstftod it ; the apprehension of one side, and the expectal!i/n owtl^ Sper, must be discovered, be- fore this rule can aMmSJbejiSjjm practice, or applied to the determination of etA^ mxmoM mkJH^^ the discus- sion of facts whiclkjja^m^aLst'^^pef^s to be settled, the discovery of intepitiejis^^^^Jer^resumes to be known, still remain to exer'msethe inqwlryjof courts of justice. And as these facts and intentions^re often to be inferred, or rather coiy'ectured, from ohsoure indications, from suspicious testi- mony or from a comparison o? opposite and contending proha^ hilities, they afford a never failing supply of doubt and litiga- tion. For which reason, the science of morality is to be con- sidered rather as a direction to the parties who are conscious of their own thouyhts and motives and designs, to which coNSoiousNESS the teacher of morality constantly appeals, than as a guide to the judge, or to any third person, whose arbitra- tion must proceed upon rules of evidence, and maxims of credibility, with which the m/rralist has no concern. II. There exist a multitude of cases, in which the law of nature, that is, the law of public exTpediencj, prescribes noth- ing, except that some ceetain rule be adhered to, and that the rule actually established, be preserved ; it either being in- different what rule obtains, or, out of many rules, no one being so much more advantageous than the rest, as to recom- Digitized by Microsoft® UNCERTAINTY OF LAW. 401 pense the inconvexiiency of an alteration. In all such cases, the law of nature sends us to the law of the land. She directs that either some fixed rule be introduced by an act of the legislature, or that the rule which accident, or custom, or common consent hath already established, be steadily main- tained. Thus, in the descent of lands, or the succession to personals from intestate proprietors, whether the kindred of the grandmother, or of the great grandmother, shall be pre- ferred in the succession ; whether the degrees of consanguin- ity shall be computed through the common ancestor, or from him ; whether the widow shall take a third or a moiety of her husband's fortune : whether sons shall be preferred to daugh- ters, or the elder to the younger ; whether the distinction of age shall be regarded amongst sisters, as well as brothers ; in these, and in a great variety of questions which the same subject supplies, the law of nature determines nothing. The only answer she returns to our inquiries is, that some certain and general rule be laid down by public authority ; be obeyed when laid down ; and that the quiet of the country be not disturbed, nor the expectation of heirs frustrated, by capri- cious innovations. This silence or neutrality of the law of na- ture, which we have exemplified in the case of intestacy, holds concerning a great part of the questions that relate to the right of acquisition of property. Recourse then must necessarily be had to statutes, or precedents, or usage, to fix what the law of nature has left loose. The interpretation of these statutes, the search after precedents, the investigation of customs, compose therefore an unavoidable, and at the same time a large and intricate portion of forensic business. Posi- tive constitutions or judicial authorities are, in like manner, wanted to give precision to many things which are in their nature indeterrrdnate. The age of legal discretion ; at what time of life a person shall be deemed competent to the per- formance of any act which may bind his property ; whether at twenty, or twenty-one, or earlier, or later, or at some point of time between these years, can be ascertained only by a positive rule of the society to which the party belongs. The lime has not leen drawn hy nature ; the human understanding advancing to maturity by insensible degrees, and its progress 26 Digitized by Microsoft® 402 APPENDIX. varying in different individuals. Yet it is necessarily, for the sake of mutual security, that a precise age be fixed, and that what is fixed be known to all. It is on these occasions that the intervention of law supplies the inconstancy of nature. Again, there are other things which are perfectly arbitrary, and capable of no certainty but what is given to them by positive regulation. It is fit that a limited time should be assigned to the defendants, to plead to the complaints alleged against them ; and also that the default of pleading within a certain time should be taken for a confession of the charge ; but to how many days or months that term should be extended, though necessary to be known with certainty, can- not be known to all by any information which the law of nature affords. And the same remarks seem applicable to almost all those rules of proceeding which constitute what is called the practice of the court ; as they cannot be traced out by reasoning, they must be settled by authority. III. In contracts, whether express or implied, which in- volve a great number of conditions ; as in those which are en- tered into between masters and servants, principals and agents; many also of merchandise, or of works of art ; some likewise which relate to the negotiation of money or bills, or to the acceptance of credit or security : the original design and ex- pectation of the parties was, that both sides should be guided by the course and custom of the country in transactions of the same sort. Consequently, when these contracts come to be disputed, natural justice can only refer to that custom. But as such customs are not always sufiiciently uniform or noto- rious, but often to be collected from the production and com- parison of instances and accounts repugnant to one another ; and each custom being only that, after all, which amongst a variety of usa,ges seems to predominate ; we have here also ample room for doubt and contest. IV. As the law of nature, founded in the very construction of human society, which is formed to endure through a series of perishing generations, requires that the just engagements a man enters into should continue in force beyond his own life ; it follows that theprwate rights of persons frequently depend Digitized by Microsoft® UNCEETAIHTY OF LAW. 403 Upon what has heen traiisacted, in times remote from the pres- ent hy their ancestors or predecessors, hy those under whom, they claim, or to whose obligations they have succeeded. Thus the questions which usually arise between lords of manors and their tenants, between the king and those who claim royal franchises, or between them and the persons aiFected by these franchises, depend, upon the terms of the original grant. In like manner, every dispute concerning tithes, in which an ex- emption or composition is pleaded, depends upon the agree- ment which took place between the predecessor of the claim- ant and the ancient owner of the land.* The appeal to these grants and agreements is dictated by natural equity, as well as by the municipal law ; but concerning the existence, or the conditions, of such old covenants, doubts will perpetually occur, to whicb the law of nature affords no solution. Tlie loss or decay of records, the perishableness of living memory, the corruption and carelessness of tradition, all conspire to multiply uncertainties upon this head ; what can not be pro- duced or proved, must be left to loose and fallible presump- tion. Under the same head may be included another topic of altercation : — the tracing out of boundaries, which time, or neglect, or unity of possession, or mixture of occupation, has confounded or obliterated. To which should be added, a dif- ficulty which often presents itself in disputes concerning rights oiway, both public and private, and of those easements which one man claims in another man's property ; namely, that of distinguishing, after a lapse of years, the use of an INDULGENCE from the exercise of a right. Y. The quantity or extent of any injury, even when the cause and author of it are known, is often dubious and unde- fined. If the injury consists in the loss of some specific right, the value of the right me'asures the amount of the injury ; but * It may be as well here to apprise the student, of the grand legisla- tiye operation recently effected for commuting the tithes of eveiy parish into a rent charge, the amount of which is to be adjusted annually ac- cording to the average price of com. See stat. 6 and 7 Will- IV, ch. Ixxi, amended by several subsequent statutes. Digitized by Microsoft® 404 APPENDIX. what a man may have suffered in his person, from an asSanlt ; in his reputation, by slander ; or in the comfort of his life, by the seduction of a wife or daughter ; or what sum of money shall be deemed a reparation for damages such as these ; can not be ascertained by any rules which the law of nature sup- plies. The law of nature commands that reparation be made ; and adds to her command, that, when the aggressor and the sufferer disagree, the damage be assessed by authorized and indifferent arbitrators. Here, then, recourse must be had to courts of law, not only with the permission, but in some measure by the direction of natural justice. VI. When controversies arise in the interpretation of written laws, they, for the most part, arise upon some contin- gency which the composer of the law did not foresee or thimk of. In the adjudication of such cases, this dilemma presents itself : if the laws be permitted to operate only npon the cases which were actually contemplated by the law-makers, they will always be found defective : if they be extended to every case to which the reasoning, and spirit, and expediency of the provision seem to belong, without any further evidence of the intention of the legislature, we shall allow to the judges a liberty of applying the law, which will fall very little short of the power of making it. If a literal construction be adhered to, the law will often fail of its end ; if a loose and vague ex- position be admitted, the law might as well have never been enacted ; for this license will bring back into the subject all the discretion and uncertainty which it was the design of the legislature to take away. Courts of justice are, cmd always must be, embarrassed by these opposite difficulties ; and as it never can be known beforehand, in what degree either con- sideration may prevail in the mind of the judge, there remains an unavoidable cause of doubt, and a place for contention. YII, The deliberations of courts of justice upon every new question are encumbered with additional difficulties, in consequence of the authority which the judgment of the court possesses, as a pkecedbnt to future judicatures ; which Digitized by Microsoft® UNOEETATNTT OF LAW. 405 autliority appertains not only to the conclusions the court delivers, but to the principles and arguments upon which they are built. The view of this effect makes it necessary for a judge to look beyond the case before him ; and, beside the attention he owes to the truth and justice of the cause between the parties, to reflect whether the principles, and maxims, and reasonings, which he adopts and authorizes, can be applied with safety to all cases which admit of a comparison with the present. The decision of the cause, were the effects of the decision to stop there, might be easy ; but the consequence of establishing the principle which such a decision assumes, may be difficult, though of the utmost importance to be_ foreseen and regulated. Vin. After all the certainty and rest that can be given to points of law, either by the interposition of the legislature, or the authority of precedents, one principal source of disputa- tion, and into which, indeed, the greater part of legal con- troversies may be resolved, will remain still, namely, " the competition of opposite amMogies." When a point of law has been once adjudged, neither that question, nor any which completely, and in all its circumstances, corresponds with that, can be brought a second time into dispute ; but questions arise which resemble this, only indirectly and in part, in certain views and circumstances, and which may seem to bear an equal or a greater affinity to other adjudged cases : ques- tions which can be brought within any fixed rule only by analogy, and which hold a relation by analogy to different rules. It is T>y the urging of the different analogies that the contention of the har is carried on / and it is in the compari- son, adjustment, and reconciliation of them with one another ; in the discerning of such distinctions ; and in the framing of such a determination as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker analogy to the stronger ; that the sagacity and wisdom of the court are seen and exercised. Amongst a thousand instances of this, we may cite one of general notoriety, in the contest that has lately been agitated concern- Digitized by Microsoft® 406 APPENDIX. ing literary property.* The personal industry wLicli an author expends upon the composition of his work bears so near a resemblance to that by which every other kind of property is earned, or deserved, or acquired ; or rather, there exists such a correspondency bet\7een what is created by the study of a man's mind, and the production of his labor, in any other way of applying it, that he seems entitled to the same exclusive, assignable, and perpetual right in both ; and that right to the same protection of law. This was the analogy contended for on one side. On the other hand, a book, as to the author's right in it, appears similar to an invention of art, as a machine, an engine, a medicine ; and since the law permits these to be copied or imitated, except where an exclu- sive use or sale is reserved to an inventor by patent, the same liberty should be allowed in the publication and sale of books. This was the analogy maintained by the advocates of an open trade. And the competition of these opposite analogies con- stituted the diflBculty of the case, as far as the same was argued or adjudged, upon principles of common law. One example may serve to illustrate our meaning, but whoever takes up a volume of Eeports will find most of the arguments it contains capable of the same analysis ; although the anal- ogies, it must be confessed, are sometimes so entangled as not to be easily unraveled, or even perceived. Doubtful and obscure points of law are not, however, nearly so numerous as they are apprehended to be. Out of the multitude of causes which, in the course of each year, are brought to trial in the metropolis or upon the circuits, they are few in which any point is reserved for the judgment of superior courts. Yet these few contain all the doubts with which the law is chargeable ; for, as to the rest, the uncer- tainty, as hath been shown above, is not in the law, hut m the means of humam, information. * Paley is here alluding to the famous case of Miller ». Taylor, re- ported in 4 Burrow's Bep. 2303, which was argued in. the year 1769. Digitized by Microsoft® 11. Essay on Judicature, by Loed Bacon. Judges ought to remember that their office is ^^jus dicere^'' and not "^'?w dare f to interpret law, and not to make law or give law; else will it be like the authority claimed by the Chnrch of Rome, which, nnder pretext of exposition of Scripture, doth not stick to add and alter, and to pronounce that which they do not find, and, by show of antiquity, to introduce novelty. Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion, and proper virtue. " Cursed (saith the law) * is he that removeth the landmark." The mislay er of a mere stone is to blame ; but it is the unjust judge that is the capital remover of land- marks, when he defineth amiss of lands and property. One foul sentence doth more hurt than many foul examples ; for these do but corrupt the stream, the other corrupteth the fountain ; so saith Solomon, '■'■Fons turbatus et vena corrujpta est Justus cadens in causa sua coram ad/oersario?'' f The office of judges may have reference unto the parties that sue, unto the advocates that plead, unto the clerks and ministers of justice underneath them, and to the sovereign or state above them. First, for the causes or parties that sue. " There be (saith the Scripture) that turn judgment into wormwood ;" J and surely there be, also, that turn it into vinegar ; for injustice maketh it bitter, and delays make it sour. The principal * The Mosaic law. He alludes to Deuteronomy, xxvii, 17 : " Cursed be he that removeth his neighbor's landmark." t " A righteous man falling down before the wicked, is as a troubled fountain and a corrupt spring."— Pro««>*s, xxv, 36. \ " Te who turn judgment to wormwood, and leave off righteous- ness in the eaith." — Amos^ v, 7. Digitized by Microsoft® 408 APPENDIX. duty of a judge is to suppress force and fraiid ; whereof force is the more pernicious when it is open, and fraud when it is close and disguised. Add thereto contentious suits, which ought to be spewed out, as the surfeit of courts. A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills ; so when there appeareth on either side, a high hand, violent prose- cution, cunning advantages taken, combination, power, great counsel, then is tlie virtue of a judge seen to make inequality equal, that he may plant his judgment as upon an even ground. '■'■Oqui fortiter emunqit, elicit sanguinem ^ " * and where the wine-press is hard wrought, it yields a harsh wine that tastes of the grape-stone. Judges must beware of hard construction and strained inferences; for there is no worse torture than the torture of laws. Especially in case of laws penal, they ought to have care that that which is meant for terror be not turned into rigor ; and that they bring not upon people that shower whereof the Scripture speaketh, ^^ Pluet swper eos laqueos / " f for penal laws pressed,:]: are a shower of snares upon the people. Therefore let penal laws, if they have been sleepers of long, or if they be grown unfit for the present time, be by wise judges confined in the execution : " Judicis offiGium est, ut res, ita tempora rerum,^^ § &c. In causes of life and death, judges ought (as far as the law per- mitteth) in justice to remember mercy, and to cast a severe eye upon the example, but a merciful eye upon the person. Secondly, for the advocates and counsel that plead. Pa- tience I and gravity of hearing is an essential part of justice, * " He who wrings the nose strongly brings blood." — Proverbs, xxi, 33. " Surely, the churning of milk bringeth forth butter, and the wring- ing of the nose bringeth forth blood ; so the forcing of wrath bringeth forth strife." t " He will rain snares upon them." — Psalm, xi, 6. " Upon the wicked he shall rain snares, fire, and brimstone, and a horrible tempest." % Strained. ' § " It is the duty of a judge to consider not only the facts, but the circumstances of the case." — Oiiid Fnat. I, i, 37. II Pliny the younger, Ep. B. 6, E. 2, has the observation: "Patienti- Digitized by Microsoft® judicatuee. 409 and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he naight have heard in due time from the bar ; or to show quickness of conceit in cutting off evidence or counsel too short, or to prevent infor- mation by questions, though pertinent. The parts of a judge in hearing are four : to direct the evidence ; to moderate length, repetition, or impertinency of speech ; to recapitulate, select, and collate the material points of that which hath been said ; and to give the rule or sentence. Whatsoever is above these is too much, and proceedeth either of glory, and willing- ness to speak, or of impatience to hear, or of shortness of memory, or of want of a staid and equal attention. It is a strange thing to see that the boldness of advocates should pre- vail with judges ; whereas, they should imitate God, in whose seat they sit, who represseth the presumptuous, and giveth grace to the modest ; but it is more strange, that judges should have noted favorites, which cannot but cause multiplication of fees, and suspicion of by-ways. There is due from the judge to tbe advocate some commendation and gracing, where causes are well handled and fair pleaded, especially towards the side which obtaineth not ; * for that upholds in the client the repu- tation of his counsel, and beats down in him the conceit f of his cause. There is likewise due to the public a civil repre- hension of advocates, where there appeareth cunning counsel, gross neglect, slight information, indiscreet pressing, or an over-bold defence ; and let not the counsel at the bar chop ^ with the judge, nor wind bimself into the handling of the cause anew after the judge hath declared his sentence ; but, on the other side, let not the judge meet the cause half way, nor give occasion to the party to say, his counsel or proof were not heard. Thirdly, for that that concerned clerks and ministers. The place of justice is a hallowed place ; and, therefore, not only am . . . gw pars «ia^nfls ^"Ma JUDICATURE, essay on, 407. JUDICIAL DECISION. See Dicta, Judgment. JUDICIAL ELOQUENCE, specimens of, 392. JUDICIAL LEGISLATION, dangers of, 423. JUDICIAL LOGIC, specimens of, 324. JUDICIAL MIND, distinct from personal conscience, 31 . JUDICIAL OPINION, of what it may consist, 63, 88. how to be construed, 98. See Opinion. JUSTICE, is as binding on communities as on individuals, 148. a material of a judgment, 33. Digitized by Microsoft® INDEX. 445 JUSTICE— Continued. speedy or slow, 387. difficulties in administering, 399, See Natural justice. KEBLE'S Reports, remarks upon, 184. KENYON, Lord, his legal knowledge, 307. KING, Lord, his adherence to the common law, 307. LABOR, English statutes regulating price of, not in force in the United States, 37. LANGUAGE. See General Language. LAW, materials of which constructed, 18. judges are to declare, not to make, 18, 199. book cases best proof of what it is, 174. judgments not creative of, 18. judgment unreversed is, 19. advantages of certainty in, 24, 199. no matter what it is, so that it be certain, 25. the object 'of, is peace, 25 note. merits and defects of, 30. continually struggling to combine inflexible rules, with per- petually varying relations, 26. pleadings as evidence of the, 41. maxims are part of the, 43. decided cases, principal authority in, 47. judges, the architects of, 47. decisions are evidence of, 47. is reason, 30, 32, 35. is founded on law of nature, and revealed law of God, 35. upholds religion and humanity, 35. law of nations part of, 147. of the authority of certain text and other books in, 150. , anomalies in, how they arise, 217. is made up of decided cases, 48. decided cases the only authority for much of, 48. reason and spirit of decisions make, 53. decided cases only evidence of, 196. equity follows, 60. depends upon principles, 197. must change with the nature of things, 73. ought not to be changed according to the times, 75. Digitized by Microsoft® 446 INDEX. LAW — Continued. progressive societies always in advance of, 76. how kept in harmony with existing state of society, 76. settled rules are, 86. rules are principles of, 87. cannot suffer anything that is inconvenient, 111. hard cases make bad, 116. practice makes, 122. usage has great force in the construction of, 122. can be made certain only by respecting precedents, 200. unwise to make it absolutely unchangeable, 200. series -of decisions not always conclusive as to what is, 241. becoming a matter of memory, 254, note. See Justice. LAW MAKING, manner of, 17. See Legislation. ' LAW OF GOD, anciently, cases in equity decided on notion of, 35. See Eevealed Law of God. LAW OF NATURE, a material of a judgment, 18, 33, defined, 34. earliest recognition of, 34. municipal law is founded upon, 35. LAWSUITS, as a means of making law, 17. results of, must always be uncertain, 26. reason for uncertainty in result of, 29, 399. LAW WRITER, not authority during his life time, 166. English, inferior to American, 169. correcting errors of the courts, 169. may increase the authority of a decision, 315. LAWYERS, wills of, often litigated, 343. See Attorney, Counsel. LEANING. See Bias. LE BLANC, J., an accurate judge, 308. LEE, Ch. J., conversant with sessions law, &c., 306, 307. LEGACIES, law of, borrowed from the civil law, 135. specific, leaning against, 379. LEGAL REASON, a material of a judgment, 33. See Reason. LEGISLATION, kinds of, 17. judgments sometimes amount to, 21. and judicial determination, difficult to define boundary between, 22. , Digitized by Microsoft® INDEX. 447 LEGISLATION— Cow^mwei. as a means of keeping law in harmony with exist- ing state of society, 76, 80. LEX MERCATORIA. See Merchants, Mercantile Law, LEVINZ' Reports, remarks upon, 185. LIGHTS. See Ancient Lights. LILLY'S Practical Register, remarks upon, 163. LITTLETON'S Tenures, remarks upon, 153. LOCAL CUSTOM, not part of the common law, 130. See Customs. LORDS. See House of Lords. MACCLESFIELD, a great chancellor, &c., 301, 306. MAKING LAW. See Law Making. MANSFIELD, Lord. The founder of English commercial law, 302, 305. his desire for popularity, 410 note. MANUSCRIPT NOTE, by which to correct report, 177, 349. authority of, 28, 29, 318. Lord Eldon's practice of referring to, 349. table of Lord Harcourt, 191. See Unreported Cases. MARIUS' Advice on Bills of Exchange, remarks upon, 163. MARKET OVERT, English rule as to sale in, not adopted in the United States, 38. MATERIALS of which the law is made, 18. of which judgments are constructed, 18, 33, 110. of judgments, important knowledge, 23. in United States, 33. practice is, 121. MAXIMS, are part of the law, 43. are principles, 43. defined, 43. borrowed from civil law, 43, note. not to be received as axioms, 45. not universally true, 45. collection of, 44. general, to be laid down with caution, 98. MEMORY, law becoming a mere matter of, 254, note. MERCHANTS, custom of, is part of the law, 127. . consulting, as to usage of trade, 346. Digitized by Microsoft® 448 INDEX. MERCANTILE LAW, importance of certainty in, 24. courts yield to principle of, 129. consulting, merchants as to, 346. MERCANTILE USAGES, great respect, paid to, 129. See Merchants. MISCHIEF. See Inconvenience. MITFORD'S Pleading, remarks upon, 158. MODERN DECISION, absence of, how it affects a question, 211. MORALITY, a material of a judgment, 33. MOSELY'S Reports, remarks upon, 185. MOTION, decision on non-enumerated, not res adjudicata, 226. MUNICIPAL LAW, is founded on Law of God, 35. See Law. NAMES, which augment the value of an authority, 299. NATIONS, law of, what it is, 147. part of the law of England, 147. division of, 147. text-books upon, 148. NATURAL Equity, a material of a judgment, 33. NATURAL JUSTICE, a material of a judgment, 33. rule of, can never vary, 35. See Justice. NATURE, law of, a material of a judgment, 18, 33. defined, 34. earliest recognition of, 34. municipal law is founded upon, 35. NAVIGABLE RIVERS, English rules as to, not adopted in the United States, 38, 85. NEW CASES, of deciding, 268. a great variety of principles open on which to de- cide, 270. decided on principle, 273. may not be new in principle, 274. when they occur, court must make a precedent, 274. objection to granting relief in, 278. See Novelty. NEWSPAPER quoted in the courts, 173. NEW YORK Reports, character of, 193. judges, eminence of, 308. NISI PRIUS Decisions, authority of, 288, 313. NOLAN, on the poor laws, remarks upon, 164. Digitized by Microsoft® IKDEX. 449 NON-ENUMERATED MOTION, decision upon, not res adjudicaia, 226. NORTHINGTON, a great lawyer, 302. NOTE, See Dyer's Reports, Manuscript. NOTTINGHAM, a great judge, 301. NOVELTY as an objection to relief, 278. in derogation of common law, 280. See New Cases. NOY'S Reports, remarks upon, 186. OBITER DICTUM, what it is, 89. See Dicta. OFFICE of Executors, book so-called remarked upon, 164; OPINION, kinds of, 88. of the profession a ground of decision, 40, 223. difference in reason not a difference in opinion, 53. judges declining to give, 49. judges divided in, 49, 333. junior judges sometimes withdraw^ 50. Judicial, of what it may consist, 53. defined, 88, 90. Hxtra Judicial, defined, 88, 90. general expressions of, to be taken in connection with the facts, 98. change of, 211. Legal, large portion of, is law taken for granted, 217. judge deciding against his own, 230. of court, usually confined to a particular point, 260. not usually given on questions not before the court, 261. reserving, until the happening of a contingency, 262. courts sometimes express an opinion on a point, without deciding the point, 265. different opinions in one case, 332. difference of, 333, 49. of counsel, reading to the court, 347. of another court or judge obtaining, 361. of civilians obtaining, 386. See Common Opinion. ORDER, interlocutory, authority of, 291. OVERRULED CASES, instances of, 221, 421. lists of, appended to volumes of reports, 228. 29) Digitized by Microsoft® 450 INDEX. PAELIAMENT, Act of. See Statutes. PARTICULAR CIRCUMSTANCES, deciding on, 256. PEACE, the object of the law, 25 note. PERKIN'S Profitable Book, remarks upon, 159. PETITION in Bankruptcy, authority of decision upon, 291. PHILLIPS on Evidence, remarks upon, 164. PLEADERS, practice of, 121. PLEADING as evidence of the law, 41. PLUMER, Sir J., a man of great industry, 308. POETS quoted by the courts, 172. POINT often adjudged should rest in peace, 228. court may express an opinion upon, without deciding, 265. not noticed, 264. new one sometimes arises, 269. frequently occurring, yet never decided, 269. so clear, as not to be doubted, 269. POLICY, public, 110, 410 note. PORTIONS, double, leaning of courts against, 379. POSTPONING Delivery of Judgment, 383. POTHIER, respect paid to the writings of, 131. POWELL, a lawyer of no mean talent, 301. POWER of a Court, 150. PRACTICAL Register in Chancery, remarks upon, 164. See Register. PRACTICE of Courts should adapt itself to existing state of society, 75, 281. • courts cannot depart from, to do justice in a particular case, 116. is authority and material of a judgment, 121, long settled, not to be disregarded, 121. of merchants, is authority, 128. of conveyancers, is authority, 123, 128. must give way to principle, 125. See Conveyancers, Merchants, Pleaders. PRECEDENT, value of the principle of following, 25. binding effect of, 25, 32. danger in not following, 31, 32. that tends to lengthen proceedings, is bad, 51. force of, in equity, 58. difference between making and following, 59. cause to stand over to search for, 385. a decided case is a, 197. the law is a codeless myriad of, 197 note. Digitized by Microsoft® IITOEX. 451 PRECEDENT— Continued. no precise rule can be laid down for authority of, 198. conflict of, 327. respect for, can alone insure certainty in the law, 200. sometimes difficult of application, 200, 327. always to defer to, would be to assert the infalli- bility of the judges, 201. reason for adherence to, that transactions have been based upon, 202, 213, 231. adherence to one, 196. adherence to two or more, 212-228. strong reasons should exist for overruling several, 213. departure from, 215. departure from, incurs high degree of responsibility, 225. inconvenience to depart from, 231. almost the sole ground of argument in questions of law, 248. confined to exactly similar cases, 250. illustrate principles, 271. courts must make, when a new case occurs, 274. PRESTON on Conveyancing, remarks upon, 164. PRINCIPLE of Law, a rule is, 87. law is dependent upon, 197. is a common ground of decision, 87. when ascertained is authoritative upon courts, 87. practice to yield to, 125. of English law, borrowed from the civil law, 138. how to use, 31. to be applied to new cases, 270. precedents illustrate, 271. new cases decided on, 273. extracting from decisions, 329. rules in conflict with, not to be extended, 221. if erroneous, yet when established, courts hesitate to overrule, 237. must be resorted to when decisions are conflicting, 245, 328. PRIVATE Interpretation, danger of, 31. Digitized by Microsoft® 452 INDEX. TFdYAT^— Continued. Opinion, ought not to prevail against established rules, 235. PROCESS, which a judge may use to construct a judgment, 23. PROPOSITIONS, although stated generally, may not admit of universal application, 97, 99. PUBLIC POLICY, 110,410 note. RE-ARGUMENT, causing a reversal of the former judgment, 359. when it will be ordered, 359, 383. REASON, the life of the law, 30, 32, 35. of a decision, not to be abstracted from the facts, 98, 251. want of, not a ground for subverting a rule, 249. See Legal Reason. RECORD, each decided case has a, 174. of a case not reported, 174. of a case, is the judgment, 175, may or may not contain reasons for the decision, 175. the best test of the correctness of a report, 176. REGISTER, the remarks upon, 158. See Practical Register. REHEARING, where judges differ in opinion, 49.. RELIGION, a material of a judgment, 33. object of law to uphold, 35. RELIGIOUS CORPORATIONS, English Law as to, not in force in New York, 37. REPEAL of Statute, by judicial determination, 19. REPORTED CASES, materials of a judgment, 34. learning the whole truth of, 347. REPORTERS appointed, 177. judicial estimates of, 179. REPORTS, foundation of jurisprudence, 47. extant from reign of Edward II, 177. definition of, 174, 176. the records, the best test of the correctness of, 176. may be corrected by manuscript notes, 177. judicial complaints against, 178. not all of equal merit, 178. goodness of, a matter of much importance, 179. English, under council of law reporting, 193. Digitized by Microsoft® INBBX. 453 REPORTS— Continued. American, 193. number of volumes of, 195. New York, 193. RES ADJUDICATA, decision on non-enumerated motion is not, 226. decision on habeas corpus is not, 227. RETROSPECTIVE LAWS, 424. REVEALED LAW of God, a material of judgment, 33. Law of England founded on, 35. See Law of God. REVIEWS quoted in the courts, 173. RICHARDS, very learned, 304. RIVERS. See Navigable Rivers. ROLLE'S Reports, remarks upon, 187. Abridgment, remarks upon, 190. ROMAN LAW, the body of, 133. ROPER on Husband and Wife, remarks upon, 152. RULES, acknowledged as authority, 72. origin of, 72. definition of, 72. varieties of, 73. when they cease to be authority, 73. are varied by circumstances, 74. are to be applied according to circumstances, 84. although erroneous, should be endured until corrected by a higher tribunal, 85. sometimes difficult to ascertain what they are, and their application, 86. are principles of law, 87. inconvenience of, does not show them to be unjust, 116. courts are judges of their own, 126. difficulty of laying down accurately, 215. Settled, to be adhered to, 88, 86, 230, 232, 249. Established, dangerous to alter, 231. when unreasonable, judges should be astute to discover reasonable distinctions to, 249 nate. insufficient reason for not ground for overturning, 249. SALE. See Market Overt. SATISFACTIONS, double, 379. SAUNDERS' Reports, remarks upon, 187. See Williams. Digitized by Microsoft® 454 INDEX. SECOND TRIAL, reason for, frequent occurrence of, 27, 28. SHEPPARD'S TOUCHSTONE, remarks upon, 159. SOLICITOR. See Attorney. STARE DECISIS, principle of, prevents courts from legislating, 22. rule of, one of the most sacred in the law, 234. rule of, should be adhered to, 197, 231, 235. reasons for adhering to, 235. is a salutary doctrine, 202. danger of departing from rule of, 413, 423. STATE DECISION, authority of, 295, 296. STATUTES, repeal of, by judicial decision, 19. to correct effect of judgments, 20. how far controlled by common law, common right, and reason, 38. customs and usages to be considered in construing, 39. forms giving a construction to, 42. rules for construction of, 46. works on the construction of, 46. inconvenience not of great weight against provisions of, 116. difficulties in the interpretation of, 344. STORY, is authority in Westminster Hall, 169. convinced court of an error of Lord Hale, 352. his mode of preparing his judgments, 388. STRANGE'S Reports, remarks upon, 187. SUGDEN on Powers, remarks upon, 164. SUPREME COURT of the United States, authority of its de- cisions, 295. TALBOT, Lord, a great real property lawyer, 301, 305. TENANCY. See Fixtures, Joint tenancy. TENTERDEN, eminently learned, 304. TERMES de la Ley, remarks upon, 164. TEXT-BOOKS, on ecclesiastical and canon law, 146. on the law of nations, 148. on the civil law, 141. on construction of statutes, deeds, and wills, 46, certain, are authority in law, 150. certain rules of law only to be found in, 151. augmented authority of, when written by judges, 152, 166. Digitized by Microsoft® INDEX. 455 TEXT-BOOKS— Continued. , authority of, during the authors' lives, 166. contain the result of the authorities, not the opinion of the authors, 167. distinction between those that are, and those that are not authority, 167. English inferior to American, 169. correcting errors of the courts, 169. sometimes mislead the courts, 169, 351 . may increase authority of a decision, 815. THURLOW, Lord, authority of his decisions, 310. a great judge, 303. TIDD'S PRACTICE, remarks upon, 165. TIME to Consider of Judgment, 384, 391. See Justice, Postponement. TRADE. See Fixtures, Merchants. TREATIES, materials of a judgment, 33. TREVOR, Lord, his constructions, 307. TRIAL, See Second Trial. TWISDEN, an able lawyer, 300. UNCERTAINTY, in the law, disadvantages of, 199. of law suits, 26, 29. in administering justice, how it arises, 399. See Certainty. UNIFORM IDEA, as a ground for decision, 40. UNITED STATES, materials of judgments in, 33. English law imported into, 36. how far English laws and customs adopted in, 37, 38. See Federal Courts. UNREPORTED CASE, authority of, 29, 318. record of, as authority, 174. See Manuscript Note. USUAGE, to be considered in construing statutes, 39, 122. may overturn dicta, 122. of merchants, great respect paid to, 129, 348. See Change, Practice. VALUE, See Authorities, Dicta. VINER'S Abridgment, remarks upon, 191. Digitized by Microsoft® 456 INDEX. WAGER, how Lord Holt disposed of action on a, 347. refusing to try action on, 383. WEBSTER'S Dictionary, extensively quoted in courts, 173. WEST'S Symboleography, remarks upon, 160. WILLES, no mean authority, 303. WILLIAMS' Notes to Saunders' Reports, remarks upon, 165. Reports, remarks upon, 187. WILLS, difficulties in interpretation of, 323, 338. of Lawyers, often litigated, 343. WINCH'S Reports, remarks upon, 188. WORDS, See Dictionaries, Glossaries, Interpretation. WRIGHT, J., one of the strictest law judges, 307. WRITER, See Law Writer. WYNDHAM, of great authority, 300. YEAR BOOKS, whence name derived, 177. See Reports. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®