where; whereas the man of science may admit that all his explorations have as yet led to no discovery.1 3 Legal fictions. Here also may be noticed a peculiarity of the law which has often excited the ridicule of bystanders, namely, the practice of using fictions in the practical administration of its rules. The precise function and necessity of legal fictions are by no means clearly marked, and yet they have occupied a prominent place in its history, and have supplied constant materials for the satirists. Bentham has said that a fiction in law is a wilful falsehood, having for its object the stealing legislative power by and for hands which could not or durst not openly claim it, and but for the delusion thus produced could not exercise it.2 He also described it as a wilful falsehood uttered by a court for the purpose of giving to injustice the colour of justice. Coke, on the other hand, said, fictions in law will never do wrong; they are never made but for necessity, and in avoidance of a mischief, and they are never strained to the prejudice of a third person who is not a party or privy. The fiction by which a common recovery enabled a tenant in tail to cut off an entail and convert an estate tail into a fee simple, enabled the courts to repeal the statute de donis.5 Ultimately the great principle worked out by the judges under Edward IV. was embodied in a statute of William IV. The fiction in actions of ejectment which introduced the names of John Doe and Richard Roe as a machinery for calling into court the real parties interested in a disputed possession and ownership of land, was invented in the reign of Edward III.; and gradually was moulded till it assumed the more rational and direct form of process confirmed by a recent statute.7 The fictions by which jurisdiction of courts was extended cannot be justified except by the remark, that in semi 1 Our courts have never dared to emulate the feat of the Court of Areopagus, which, when puzzled to find a law applicable to a case, got out of the difficulty by postponing the further hearing, and directing the parties to come up to the court for judgment that day one hundred years hence.-Aul. Gell. b. xii, ch, vii, 21 Benth. Works, 243, 42 Rep. 29b, 30a. 6 3 & 4, Will, IV. c. 74 § 2. 3 5 Benth, Works, 13, barbarous times all modes of extending relief are honourable. But as no one now defends fictions as distinct from axioms and postulates in argument, it is unnecessary to dispute the supremacy of Bentham in this field of criticism. Adherence of courts to precedents.-Not only have judgemade law and legal fictions been used as handles for reproach to lawyers, but their blind adherence to precedents has also kindled the ridicule and scorn of their detractors.1 In order to appreciate the displeasure provoked by a habit stigmatised as so bigoted and superstitious, it is necessary to consider what is a precedent in the eye of the law. A precedent has two meanings, which are however closely connected. First it means the deliberate adjudication on some prior occasion of a matter properly within the jurisdiction of the court, and announced with or without reasons, good or bad, given at the time. Secondly it means a form of practice which, with or without reason, has been in use for a great length of time, and which the court and its officers treat as part of the law not to be departed from or altered without the intervention of the legislature. As regards the authority of adjudged cases, it is sometimes asked with wonder and curiosity, why, if a court in adjudicating on a dispute discover that on some prior occasion -it might be hundreds of years before-another court had decided a similar point, or what is considered by it to be substantially the same point, will at once suspend all further reflection on the subject, will refuse to think about justice, equity, or good sense, and will blindly adopt the same conclusion as its predecessor. And this though one of the litigants may have shown unanswerable grounds for believing that such former decision was wrong, i.e. that the reasons avowed or conjectured as its basis were ill founded. Though the judges who formerly decided the same point may have been weak, or hasty, or capricious-though their judgment may have been warped by sinister influences, 1 BENTHAM said precedents were avowed substitutes for reason, and the results of the predominance of the sinister interests of the ruling few.-10 Benth. Works, 511. HOBBES ridicules lawyers' slavery to precedents.-3 Hobbes's Works, 91. SWIFT does the same in "Gulliver's Travels." the growth of a timid or time-serving age-their reasons may have been puerile-may be plainly opposed to the policy, the tendencies, the improved standard of morality, justice, or good sense of the present day—yet in spite of all such criticism the court will stand by the precedent and refuse to think twice on the subject. All this it is suggested is so unlike the conduct of other inquirers after truth (for justice here is truth), that strangers profess to be at a loss to reconcile it with the dignity and singlemindedness becoming the votaries of an illustrious science. Imputations like these cannot be answered effectually without pointing out one or two leading principles on which the action and procedure of all courts of justice are necessarily based. The province of a court, it must be recollected, is not to legislate but to adjudicate-not to make laws square with one's better judgment, but only to find out and declare what are the laws, good or bad, which exist at the time of the dispute. And as Lord Camden pointed out, a judge is sworn to determine, not according to his own private judgment, but according to the known laws of the land.1 Whatever complexion a legal adjudication may bear to third parties, it is, within the interior of the court, only a search for a historical fact.2 What judges try to seek out 1 19 St. Tr. 1071. 2 "An adherence to fixed rules and a jealousy of judicial discretion have in no country, I believe, been carried to such length as in England. Hence precedents of adjudged cases, becoming authorities for the future, have been constantly noted, and form, indeed, almost the sole ground of argument in questions of mere law."-2 Hallam, Mid. Ages, 341. ADAM SMITH says: “In doubtful cases courts, from their anxiety to avoid blame, naturally endeavour to shelter themselves under the example or precedent of former judges. This attention to practice and precedent necessarily formed the Roman law into that regular and orderly system in which it has been delivered down to us; and the like attention has had the like effects upon the laws of every other country where such attention has taken place."-Smith's Wealth of Nations, b. v. ch. i. Judges ought to remember that their office is jus dicere, and not jus dare, to interpret law, and not to make law or give law. Else will it be like the authority claimed by the Church of Rome, which, under 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."-Bac. Ess. 56, "Can the twelve judges extrajudicially make a thing law to bind the is the existing rule, and this is sought by examining adjudged cases published, or at least recorded,-by collating the opinions of ancient or approved text-writers and commentators, if no better secondary evidence can be found-by reasoning from admitted rules applicable to general cases, and pursuing these into the special circumstances, according to ordinary methods common to all human inquirers. Another principle is, that the court considers itself bound to find a law somewhere for each case that arises, and assumes with confidence that the legislature or common law has provided some rule, if only it can be found-not indeed that the rule may be perfect, but good enough to be acted on till a better be found. This assumption may seem to ascribe an attribute of omniscience to some legislature which it may be far from deserving; but it means little more than this, that it does not lie in the mouth of any judge to say he is wiser than the legislature. It means only that if he will take the trouble to inquire he can always satisfy himself either that there is or is not a specific provision applicable, for in either of these events a decision for the purpose of the day can be found, which will dispose of the dispute more or less satisfactorily. But if a judge must act so as not to be wiser than the legislature, the same temper will lead him to give credit to his predecessors, that they, having the same and perhaps better materials, had faithfully acquainted themselves with the appropriate rule of law existing in their time. If any one judge were to set himself up above another, especially above one in whose favour the natural prejudices of men associate veneration with age, he would be in effect assuming the function of legislation rather than of adjudication, he would be unsettling instead of strengthening-and he must look to be himself displaced and unsettled in his turn by his successor.1 kingdom by a declaration that such is their opinion? I say no. It is a matter of impeachment for any judge to affirm it. There must be an antecedent principle or authority, from whence this opinion may be fairly collected; otherwise the opinion is null, and nothing but ignorance can excuse the judge that subscribed it."-Per Pratt, C. J., Entick v Carrington, 19 St. Tr. 1071. 1JULIAN, in the Pandects, says that a reason cannot be given for all that our ancestors have established. And CAIUS says he wonders, why some laws should exist.-Lib. ix., ff. De Offic. The mischief of disregarding precedents is thus obvious. The moment a court of competent jurisdiction declares the law, and its decision is not made matter of appeal, it becomes known and acted upon and absorbed into the stream of business. Men's rights are adjusted accordingly;people live and die in the faith that their property and rights are fixed as far as human affairs will permit. But if the deliberate judgment of to-day is to be upset to-morrow, because one judge thinks himself more learned, wise, and clear-sighted than his predecessor, no man could sleep in ARISTOTLE said no one should be wiser than the laws.-Arist. Rhet. i. 15, 12. "It is of less importance that the law should be abstractly right than that it should be constant and invariable."-Lozon v Pryce, 4 My. & Cr., 617. It was a favourite maxim of Lord Macclesfield that it was of little consequence how a point is determined at first, provided it is afterwards adhered to.-Î P. Wms., 452, 549; 2 P. Wms. 2, 213. LORD COWTER, before him, had also said the same thing.-Brown Barkham, 1 Str. 30. And LORD KING followed them (2 P. Wms. 613), and even tried to pass an act of Parliament to settle some moot point of old standing.-1 Str. 569. LORD MANSFIELD said "the laws of England would be a strange science indeed, if it were decided on precedents only. Precedents serve to illustrate principles and give them a fixed certainty. But the law of England, which is exclusive of positive law enacted by statute, depends upon principles; and these principles run through all the cases, according as the particular circumstances of each case have been found to fall within one or other of them."-Jones v Randall, Cowp. 39. In R. v Wilkes, 19 St. Tr. 1116, the same judge said that an authority, though begun without law, reason, or common sense, must be followed. And PARKE, J., spoke of finding out the law for every case in this manner. "We have no right to consider a new case, because it is new, as one for which the law has not provided at all, and because it has not yet been decided to decide it for ourselves, according to our own judgment of what is just and expedient. Our common law system consists in applying to new combinations of circumstances those rules of law, which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases that arise and we are not at liberty to reject them, and to abandon all analogy to them in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of the law as a science."-Mirehouse v Rennell, 8 Bing. 515; 1 Cl. & F. 546. : |