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and the civil does not, a technical rule prevents the vendee from recovering back what we, as well as the civilians, deem him entitled to receive.
§ 26 b. In the third place, even the technical rules rest on some reason, good or bad. The reason of these technical rules however, has often passed away in the changes produced by the lapse of time. But, though it has passed, an understanding of it is frequently necessary to a correct application of the rules.
§ 27. Another consideration relates to the stability of the law. In all ages and countries, wherever the common law has been administered, the judges have deemed, that, as an object of the first importance, it should be unvarying; therefore they have adhered to a course of decision whereby a rule has become established, though afterward of opinion that the rule was a bad one. They have also deemed, that the law should be known.2 These objects commend themselves to universal approval; but the difficulty is to distinguish between cases which have established an unwise rule, to be therefore adhered to; and cases manifestly wrong, not establishing a rule, to be therefore disregarded.3
§ 27 a. A single adjudication will be more readily departed from than a series of decisions; for the common law, when established, is as binding as the statutes. And when
1 Selby v. Bardons, 3 B. & Ad. 2, 17; Williams v. Germaine, 7 B. & C. 468, 476; Goodtitle v. Otway, 7 T. R. 399, 419; Walton v. Tryon, 1 Dickens, 244, 245.
Butler v. Duncomb, 1 P. Wms. 448, 452. "I do not know any exception to this general axiom, that every member of society should know when he is criminal, and when innocent." Beccaria on Crimes, c. 11.
3 See on this subject the commentary on the maxim, Omnis innovatio plus novitate perturbat, quam utilitate prodest. Broom Leg. Max. 2d ed. 109.
Shaw, C. J., in Commonwealth v. Chapman, 13 Met. 68, 70; Martin v. Martin, 25 Ala. 201; Powell v. Brandon, 24 Missis. 343.
only one decision has laid down a rule of property, and the community have acted on the rule, the court will ordinarily not reverse it; but leave its correction, if wrong, to the legis lature.1 If the judges are equally divided in their opinion of a case, the decision is not generally deemed binding on their successors. If, in a particular case, a point has been adjudged, the adjudication may, under circumstances, be the law of the case, when the court would still refuse afterward to follow it in another case. Ordinarily a single determination contrary to precedent and to principle must be discarded, especially when it has not long stood in the reports to mislead the people. But, to justify any overruling of the doctrine of a former adjudication, the judges should clearly perceive that the former was wrong. And if, contrary to reason and good policy, any rule of law has become too firmly fixed to be overthrown, the judges should keep this rule within the narrowest limits, and not suffer it to govern merely by the force of analogy.6
§ 28. What is thus far said in this chapter shows, that, while the law is in nature the same from age to age, it is variable in outward manifestation. In the march of human affairs, circumstances and relations of society before unknown are ever transpiring; and they call for new evolutions and applications of principles. The discovery also of principles, before unknown, which governed former cases, leads to apparent differences in the law where none in fact exist. Therefore a learned judge has observed: "The present com. mon law of England is as dissimilar from that of Edward III. as is the present state of society.. And we apprehend, that no one could be found to contend that hundreds of prin
⚫ Callender v. Keystone Insurance Co. 11 Harris Pa. 471; ante, § 24 a.
Sydnor v. Gascoigne, 11 Texas, 449.
Judson v. Gray, 1 Kernan, 408.
ciples which have, in more modern times, been examined, argued, and determined by the judges, are not principles of the common law, because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their repositories, because the occasion which called for their exposition had not arisen. The common law, then, is not like the statute law, fixed and immutable but by positive enactment, except where a principle has been adjudged as the rule of action."1 So we see in what sense the common law is fixed, and in what progressive; it is fixed, in adhering to established doctrines; 2 progressive, in adapting itself to the ever varying conditions of human society. Its progressive, flexible character is manifest as well in the criminal department as in the civil.1
§ 29. Therefore, principles, explained already to be either technical rules or rules existing in the nature of things, and established by the force of judicial decision, are the chief objects of juridical studies; the centres to which all legal knowledge tends. The student of the law learns them as the student of natural philosophy learns the doctrines of his books; and, as the latter refers to the facts of nature only for illustrations of those doctrines, so the former looks at the cases decided simply to illustrate the principles. Well has it been said, that he who is ignorant of the reasons of the law, that is, of the principles which compose it, is ignorant of the law itself. Cessante ratione legis, cessat ipsa lex,5 is an old and true maxim. Yet this maxim should not be misunder
1 Turley, J., in Jacob v. The State, 3 Humph. 493, 515.
Reg. v. Gray, 3 Crawf. & Dix C. C. 238; Commonwealth v. Callaghan, 2 Va. Cas. 460; Anderson v. Commonwealth, 5 Rand. 627, 631. A maxim of the common law is, Actor qui contra regulam quid adduxit, non est audiendus.
* Renssellaer Glass Factory v. Reid, 5 Cow. 587, 628, per Senator Spencer; Kelly v. The State, 3 Sm. & M. 518.
The State v. Hale, 2 Hawks, 582; Commonwealth v. Hunt, 4 Met. 111, 121; Mifflin v. Commonwealth, 5 Watts & S. 461.
'Broom Leg. Max. 2d ed. 118, and see the maxim on p. 114.
stood; because a rule, once fixed, remains, though the causes which gave it being have crumbled away with time. Thus a large part of the rules governing real property in the present age and in the United States, originated in the feudal system, which long ago ceased to exist. And the most consummate legal skill is often required to determine, whether a particular rule changes with the reason on which it originally rested, or whether it has become crystallized in the law, so as to be immovable except by legislative power. No general direction here will much aid the inexperienced reader.1
1 In a late Massachusetts case, Shaw, C. J., observed: "It is one of the great merits and advantages of the common law, that, instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail when the practice and course of business to which they apply should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more by judicial exposition; so that, when in a course of judicial proceeding, by tribunals of the highest authority, the general rule has been modified, limited, and applied, according to particular cases, such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases under like circumstances. . . . . The consequence of this state of the law is, that, when a new practice or new course of business arises, the rights and duties of parties are not without a law to govern them; the general considerations of reason, justice, and policy, which underlie the particular rules of the common law, will still apply, modified and adapted by the same considerations, to the new circumstances. If these are such as give rise to controversy and litigation, they soon, like previous cases, come to be settled by judicial exposition, and the principles thus settled soon come to have the effect of precise and practical rules. Therefore, [applying these observations to the case before the court,] although steamboats and railroads are but of yesterday, yet the principle which governs the rights and duties of carriers of passengers, and also those which regulate the rights and duties of carriers of goods, and of the owners of goods carried, have a deep and established foundation in the common law, subject only to such modifications as new circumstances may render necessary and mutually beneficial." Norway Plains Company v. Boston and Maine Railroad, 1 Gray, 263, 267, 268. And for similar observations, see Bell v. The State, 1 Swan, Tenn. 42.
II. The way of Learning the Law.
§ 29 a. Something concerning books will be said in our next chapter; the object of our present sub-title being to explain how the law is learned through the use of books. Because, although a proposition is laid down in a book generally received as authoritative, it may still be erroneous; in other words, not law. We shall not say on this subject all which might be said, but present a few points of particular importance.
§ 29 b. We look at the statutes, the decided cases, and the writings of lawyers and judges, for evidence of what the law of a particular case is. The question of statutory interpretation will be considered by and by. Already we have taken a partial view of the adjudged cases, and the use to be made of them. We have seen,1 that the reasons which the judge gives for his conclusion are not, like the conclusion itself, binding as authority. Yet they may be satisfactory evidence of the law; there being a distinction between the law, as by authority, and the evidence of the law.
§ 30. A case in which the particular question was not raised, though involved in it, is of little weight.2 The same may be said of an observation of the judge upon a point not in controversy.3 Then we are to consider with what ability the oppo-site view to that taken by the court was argued by counsel; the character and standing of the court; and, above all, the force and propriety of its reasonings. We must be sure, too, that we understand the opinion of the judge, especially that we do not give to his general words too great latitude. This
1 Ante, § 24 b.
People v. Corning, 2 Comst. 9, 15.
* The Louisa Bertha, 14 Jur. 1007, 1 Eng. L. & Eq. 665, 669; Carroll v. Carroll, 16 How. U. S. 275.
↑ And see Ram Leg. Judgm. 17 et seq.