Commentaries on American Law (1826-30)
Chancellor James Kent
Of Reports of Judicial Decisions
HAVING considered the nature and force of written law, and the general rules which are applied to the interpretation of statutes; we are next to consider the character of unwritten, or common law, and the evidence by which its existence is duly ascertained.
The common law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. According to the observation of an eminent English judge,1 a statute law is the will of the legislature in writing, and the common law is nothing but statutes worn out by time; and all the law began by consent of the legislature.
This is laying down the origin of the common law rather too strictly. A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale,2 the common law of England is “not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men.” And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay. “Where the subject of any law, is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us, that new and unthought of emergencies often happen, that necessarily require new supplements, abatements, or explanations. But the body of laws, that concern the common justice applicable to a great kingdom, is vast and comprehensive, consists of in. finite particulars, and must meet with various emergencies, and, therefore, requires munch time, and much experience, as well as much wisdom and prudence successively, to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such are the common laws of England; namely, the productions of much wisdom, time, and experience.”
But though the great body of the common law consists of a collection of principles to be found in the opinions of sages, or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts; it is, nevertheless, true, that with us the common law, as far as it is applicable to our situation and government, has been recognized and adopted, as one entire system, by the people of this state. It was declared to be a part of the law of the land, by an express provision in the constitution of 1777, and in the amended constitution of 1821.
The best evidence of the common law is to be found in the decisions of the courts of justice, contained in the numerous volumes of reports which crowd the lawyer’s library; and in the treaties and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of the common law. Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel, and the labor of judges, are constantly required in the study of the reports, in order to understand accurately their imports and the principles they establish. But to attain a competent knowledge of the common law in all its branches, has now become a very serious undertaking, and it requires a steady and lasting perseverance, in consequence of the number of books which beset and encumber the path of the student.3 The grievance is constantly growing worse, for the number of periodical lack reports and treatises which issue from the English and American press, is continually increasing; and if we wish to receive assistance from the commercial systems of other nations, and to become acquainted with the principles of the Roman law, as received and adopted in continental Europe, we are in still greater danger of being confounded, and of having our fortitude subdued, by the immensity and variety of the labors of the civilians.4 It is necessary that the student should exercise much discretion and skill in the selection of the books which he is to peruse. To encounter the whole mass of law publications in succession, if practicable, would be a melancholy waste or misapplication of strength and time.
Lord Bacon, in the aphorisms annexed to his treatise De augmentis Scientiarum, speaks of the necessity of a revision and digest of the law, in order to restore it to a sound and profitable state, whenever there has arisen a vast accumulation of volumes, throwing the system into confusion and uncertainty. The evils resulting from an indigestible heap of laws, and legal authorities, are great and manifest. They destroy the certainty of the law, and promote litigation, delay, and subtlety. The professors of the law cannot afford the expense and time necessary to collect and digest the volumes, and they are obliged to rely too much on the second-hand authority of digests ipse advocatus, cum tot libros perlegere et vincere non possit, compendia sectatur glossa fortasse aliqua bona.5 The period anticipated by Lord Bacon seems now to have arrived. The spirit of the present age, and the cause of truth and justice, require more simplicity in the system, and that the text authorities should be reduced within manageable limits; and a new digest of the whole body of the American common law, upon the excellent model of Comyn’s Digest, and executed by a like master artist, retaining what is applicable, and rejecting every thing that is obsolete and inapplicable to our institutions, would be an immense public blessing.
A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unrepressed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and their contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly rewarded, and pretty implicitly followed. It is by the notoriety and stability of such rules, that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy, and to trust, and to deal with each other.6 If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. If, however, any solemnly adjudged case can be shown to be founded in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error. But when a rule has been once deliberately adopted aid declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.7 The language of Sir William Jones8 is exceedingly forcible on this point. No man,” says he, “who is not a lawyer, would ever know how to act; and no man who is a lawyer would, in many instances, know what to advise, unless courts were bound by authority as firmly as the Pagan deities were supposed to be bound by the decrees of fate.”
Throughout the whole period of the year books, from the reign of Ed. III to that of Hen. VII, the Judges were incessantly urging the sacredness of precedents, and that a counselor was not to be heard who spoke against them, and that they ought to judge as the ancient sages taught. If we judge against former precedents, said Ch. J. Prisot9 it will be a bad example to the barristers and students at law, and they will not give any credit to the books, or have any faith in them. So the Court of King’s Bench observed, in the time of James 1,10 that the point which had been often adjudged ought to rest in peace. The inviolability of precedents was thus inculcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period.
But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive 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 of it. Lord Mansfield frequently observed, that the certainty of a rule was often of much more importance in mercantile cases than the reason of it, and that a settled rule ought to be observed for the sake of property; and yet, perhaps, no English judge ever made greater innovations and improvements in the law, or felt himself less embarrassed with the disposition of the elder case when they came in his way, to impede the operation of his enlightened and cultivated judgment. His successor, Lord Kenyon, acted like a Roman dictator, appointed to recall and reinvigorate the ancient discipline. He controlled or overruled several very important decisions of Lord Mansfield, as dangerous innovations, and on the ground that they had departed from the precedents of former times, and disturbed the landmarks of property, and had unauthorizedly superadded equity powers to a court of law. “It is my wish and my comfort,” said that, venerable judge, “to stand super antiquas vias. I cannot legislate; but by my industry I can discover what our predecessors have done, and I will tread in their footsteps.” The English courts seem now to consider it to be their duty to adhere to the authority of adjudged cases, when they have been so clearly, and so often, or so long established, as to create a practical rule of property, notwithstanding they may feel the hardship, or not perceive the reasonableness of the rule. There is great weight in the maxim of Lord Bacon,11 that optima est lex, quae minimum relinquit arbitrio judicis; optimus judex, qui minimum sibi. The great difficulty as to cases, consists in making an accurate application of the general principle contained in them to new cases, presenting a change of circumstances. If the analogy be imperfect, the application may be erroneous. The expressions of every judge must also be taken with reference to the case on which he decides; we must look to the principle of the decision, and not to the manner in which the case is argued upon the bench, otherwise the law will be thrown into extreme confusion.12 The exercise of sound judgment is as necessary in the use, as diligence and learning are requisite in the pursuit, of adjudged cases.13
Considering the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society, as well as of the footsteps of time. The ancient reporters are going very fast not only out of use, but out of date, and almost out of recollection. The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law, and the most judicious application of abstract and eternal principles of right to the refinements of property. They are likewise accompanied by illustrations best adapted to the inquisitive and cultivated reason of the present age. But the old reporters cannot be entirely neglected, and I shall devote the remainder of this lecture to a short historical review of the principal reporters prior to the present times. No one ought to read a book, said M. Lami,14 (and the remark has peculiar application to law books,) unless he knows something of the author, and when he wrote, and the character of the work, and the character of the edition.
For the sake of perspicuity and convenient arrangement, we will divide the reports into two classes: those that preceded, and those that are subsequent to the year 1688. I select that period, because the distinction between the old and new law seems then to be more distinctly marked. The cumbersome and oppressive appendages of the feudal tenures were abolished in the reign of Charles II., and the spirit of modern improvement, and of commercial policy, began then to be more sensibly felt, and more actively diffused. The appointment of that great and honest lawyer, Lord Holt, to the station of chief justice of the King’s Bench, gave a new tone and impulse to the vigor of the common law. The despotism of the Stuarts was abolished for ever, and the civil and political liberties of the English nation were more explicitly acknowledged and defined at the accession of the House of Orange. The old reporters will include all the reports from the year books down to that period; and we will, in the first place, bestow upon those of them which are the most distinguished, a cursory glance and rapid review.
The oldest reports extant on the English law, are the Year Books, which consist of eleven parts or volumes, written in law French, and extend from the beginning of the reign of Edward II. to the latter end of the reign of Henry VIII., a period of about two hundred years. There are a few broken cases which may be gleaned from the old abridgments, and particularly from Fitzherbert, which go back to the reign of Henry III. The Year Books were printed by subscription in 1679; but they have never been translated, and they are not worth the labor and expense either of a new edition or of translation. The substance of the Year Books was afterwards included in the great abridgments of Statham, Fitzherbert, and Brooke, and those compilations superseded in a considerable, degree the use of them. The Year Books were very much occupied with discussions touching the forms of writs, and the pleading and practice in real actions, which have gone entirely out of use. In a late case in the C. B. the judges spoke with some sharpness of reproof against going back to the Year Books in search of a precedent in the case of levying a fine.15 The great authenticity and accuracy of the Year Books arose from the manner in which they were composed. There were four reporters appointed to that duty, and they had a yearly stipend from the crown, and they used to confer together, and the reports being settled by so many persons of approved diligence and learning deservedly carried great credit with them.16 But so great have been the changes since the feudal ages, in the character of property, the business of civil life, and the practice of the courts, that the great mass of curious learning and technical questions contained in the Year Books, has sunk into oblivion; and it will be no cause of regret if that learning be destined never to be reclaimed. The Year Books have now become nearly obsolete, and they are valuable only to the antiquary and historian, as a faithful portrait of ancient customs and manners.17
The Year Books ended in the reign of Henry VIII, because persons were no longer appointed to the task of reporting, with the allowance of a fixed salary. Private lawyers then undertook the business of reporting for their own use, or for the purpose of publication. Many English lawyers have regretted that the practice of appointing public reporters, with a stipulated compensation, was not continued, as it would have relieved the profession from many hasty and inaccurate reports, which have greatly increased the uncertainty of the law. The reports of Dyer relate to the reigns of Henry VIII., Edward VI., Mary, and Elizabeth. They have always been held in high estimation, for Dyer presided as chief justice of the C. B. for upwards of twenty years, and was distinguished for learning, ability, and firmness. His reports were afterwards enriched by marginal notes of Chief Justice Treby, and which are said by Mr. Justice Buller,18 to be good law. The work was compiled in law French, and published in an English translation in 1793, with the notes.
Plowden’s Commentaries embrace the same period as the reports of Dyer. They bear as high a reputation for accuracy as any ancient book of reports, though Lord Coke said he had discovered four cases in Plowden which were erroneous.19 Plowden gives the pleading in those cases in which judgment was entered; and the arguments of counsel, and the decisions upon the bench very much at large. They were first published in 1578, and taken originally, as he says, for his private use. But he took great pains in rendering his work accurate, and he reported nothing but what had been debated and decided upon demurrer, or special verdict; and his reports were likewise submitted to the inspection of the sergeants and judges. The work is, therefore, distinguished for its authenticity and accuracy, and though not of so dramatic a character as much of the. Year Books, it is exceedingly interesting and instructive, by the evidence it affords of the extensive learning, sound doctrine, and logical skill of the ancient English bar.
Lord Coke’s reports, in 13 parts or volumes, are confined to the reigns of Elizabeth and James, and deservedly stand at the head of the ancient reports, as an immense repository of common law learning. The first eleven books of his reports contain about 500 cases, and were published in his lifetime, and he took care to report and publish only what he calls leading cases, and conducive to the public quiet. Lord Bacon said, that had it not been for Sir Edward Coke’s reports, the law in that age would have been almost like a ship without ballast. Much of the various and desultory learning in these reports is law to this day, and the most valuable of the cases reported have been selected and recommended to the attention of the American student by Professor Hoffman, of the university of Maryland, in his “Course of legal study.” When these reports were published, between 1600 and 1615, there were no other prior reports, but the Year Books, Dyer, and Plowden. Lord Coke said, that he endeavored, in his reports, to avoid obscurity, ambiguity, and prolixity. It is singular that he should have so egregiously failed in his purpose. The want of methodical arrangement and lucid order, is so manifest in his reports, and he abounds so greatly in extrajudicial dicta and desultory learning, that he is distinguished above most other reporters, for the very defects he intended to avoid. It is often very difficult to separate the arguments of counsel from the reasons and decision of the court, and to ascertain precisely the point adjudged. This, probably, gave occasion to Ireland and Manley’s Abridgment of Lord Coke’s Reports, in which they undertake to detach from the work all the collateral discussion and learning, and to give only the “very substance and marrow” of the reports. A work of this kind may be convenient in the hurry of research, but I believe no accurate lawyer would ever be content to repose himself upon such a barren account of a decision, without looking into the reason and authorities on which it was founded. With all their defects, Lord Coke’s Reports are a standard work of that age, and they alone are sufficient to have discharged him from that great obligation of duty with which he said he was bound to his profession. When Coke’s Reports were first published, they gave much offense to King James, as containing many doctrines which were deemed too free and injurious to the prerogative of the crown; and the king commanded Lord Coke to strike out the offensive parts, and he also referred the work to his judges to be corrected.20 But Lord Coke was too independent in spirit, and he had too high a regard to truth and law, to gratify the king on this subject; and he was, for this and other causes, removed from the office of Chief Justice of the K. B.
Hobart’s Reports of cases in the time of James I were printed in 1646, and in a subsequent age they were revised and corrected by Lord Chancellor Nottingham. Like the reports of Lord Coke, they are defective in method and precision, and are replete with copious legal discussions. Hobart was chief justice of the C. B., and a very great lawyer. Judge Jenkins, the contemporary of Coke and Hobart, has given us, in the preface to his reports, an exalted eulogy on those distinguished men, and the biographical sketch of their characters is peculiarly animated and lively. Jenkins compiled his reports, or centuries, (as he quaintly terms them,) during the tumult of the civil wars under Charles I. and the commonwealth; and they resemble more a digest of decisions after the Manner of Fitzherbert and Brooke, than regular reports of adjudged cases.
From his intemperate language and hard fate, it is evident he was a zealous royalist, and had provoked the resentment of his enemies. He composed his work, as he says, when he was “broken with old age and confinement in prison, where his fellow subjects, grown wild with rage, had detained him for fifteen years, and that he was surrounded with an odious multitude of barbarians.” He renders. a just tribute of veneration to the memory of Lord Coke and Lord Hobart, as two men who had furnished surprising light to the professors of the law. They were judges of great authority and dignity, who, to the most accurate eloquence, joined a superlative knowledge of the laws, and consummate integrity, and whose names, he said, would flourish as long as the laws and the kingdom should endure. Lord Hobart, as he continues to observe, was adorned with the brightest endowments, and a piercing understanding, and he had always equity before his eyes. Lord Coke was a judge whom power could not break, nor favor bend. He enjoyed the smiles and frowns of, the court by turns, and possessed an immense fortune, which he had honestly acquired. The only thing objected to him as a fault was, that he was thought to go too great lengths with the republican party, but he admits that he died in the highest estimation.
Croke’s Reports of decisions in the courts of law in the reigns of Elizabeth, James, and, Charles, are a work of credit and celebrity among the old reporters. They commence about the time that Dyer ended, and were first published under the protectorate of Cromwell. From the character of the judge, his gravity, learning, diligence, and advantages, and from the precision and brevity of his vases, these reports have sustained their character in every succeeding age, and are, to this day, familiarly referred to, as an authentic depository of the rules of the common law.
The reports of Yelverton are a small collection of select cases in the latter part of the reign of Elizabeth, and the first ten years of the reign of James. He was a judge of the C. B. and one of the most eminent lawyers of thug age and which was truly the Augustan age of the old common law learning. These reports have been lately recommended to the notice of the American lawyer, by a new edition published in this country, and enriched with copious, valuable, and accurate notes, by Mr. Metcalf.
In the reign of Charles II the most distinguished of the reports are those of Chief Justice Saunders. They are confined to decisions in the K. B. for the space of six years, between the 18th and 24th years of the reign of Charles II., and contain the pleadings and entries in the cases decided, as well as the arguments of counsel, and the judgment of the court. They are recommended for the accuracy of the entries, and the concise, clear, and pointed method of decision; and are particularly valuable to the practicing lawyer as a book of precedents as well as of decisions. They have always been esteemed the most accurate and valuable reports of that age, and, this is the character which has been repeatedly given of them by the judges in modern times.21 A new edition of these reports was published in 1799 by Sergeant Williams, with very copious notes, which in many instances, are distinct and elaborate essays on the subjects of which they treat. Lord Eldon has said, in reference to this edition, 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 Sergeant Williams, and that no man ever lived, to whom the character of a great common lawyer more properly applied. I have no doubt of the merit of the edition, and of the great learning of the editor. The authorities, new and old, applicable to the subject, are industriously collected, and methodically arranged. But with all the praise justly due to the edition, it is liable to the great objection of making one of the old reporters the vehicle of voluminous dissertations. They introduce perplexity and confusion by their number and length. If such treatises were published by themselves, the student would know better where to find them; but when appended to a plain reporter, they seem to be out of place. Notes would appear to be more appropriate, if they were confined simply and drily to the illustration of the case in the text, and to show, by a reference to other decisions, how far it might still be regarded as an authority, and when and where it had been confirmed, or questioned, or extended, or restricted, or overruled. The convenience and economy of the profession would certainly be well consulted by this course. This edition of Saunders so far surpasses in extent and variety of learning, the original work, as to become a new work of itself, which might properly be denominated Williams’ notes; and the venerable simplicity of the reporter is obscured and lost, in the commentaries of the annotator.
The reports of Chief Justice Vaughan contain some very interesting cases. He was a grave and excellent judge, and his reports consist chiefly of his own arguments. and opinions, delivered while he was chief justice, and they are distinguished for great variety of learning. The reports of Sir Thomas Jones, who was also chief justice in the reign of Charles II; of Sir Creswell Levinz, who was a judge of the C. B.; of Sir Geffrey Palmer, who was attorney general under Charles It.; of Lord Chief Justice Pollexfen, whose reports consist of cases argued by him while he was at the bar; and of Sir William Jones, who was for twenty two years a judge, are all of them works of authority, though a considerable part of the discussions and decisions which they record, ceases at this day to excite much attention, or to be very applicable to the new and varied course of human affairs. And, indeed, it may be here observed, that a very large proportion of the matter contained in the old reporters, prior to the English revolution, has become superseded, and is now cast into the shade, by the improvements of modern times; by the disuse of real actions, and of the subtleties of special pleading; by the cultivation of maritime jurisprudence; by the growing value and variety of personal contracts; by the spirit of commerce, and the enlargement of equity jurisdiction; by the introduction of more liberal and enlightened views of justice and public policy; and, in short, by the study and influence of the civil law.
In perusing the old reports, we cannot but be struck with the long, laborious, and subtle arguments, and the great delay which accompanied the investigation of points of law. Thus, for instance, the case of Stowell v. Zouch, in Plowden, was argued twice in the C. B., and then twice in the Exchequer Chamber, before all the judges of England. Calvin’s case, in Coke, was argued first at the bar of the K. B. by counsel, then in the Exchequer Chamber, first by counsel; and then by all the judges. It was afterwards argued by counsel at two different times, and then by all the judges at the next term, upon four different days; and at another term thereafter by all the judges on four different days. So again in Manby & Richards v. Scott, in Levinz, the case was argued at the bar three several times, by distinct counsel each time, and afterwards by all the judges at the bench. It was quite common in former times to have a case spoken to at two, and three, and four several times, and each time at a different term, before the judgment was rendered. Indeed, so late as the time of Willes’ reports, in the reign of Geo. II. we find a case which was argued five times, and at five distinct terms, and the judgment was not rendered until the space of five years had elapsed from the first argument. It was not until the time of Lord Mansfield that such repeated arguments were disused, and great dispatch and unexampled facility and vigor given to the administration of justice. There were some advantages attending these repeated discussions, which served as a compensation for the delay and expense attending them. They tended to dissipate shadows and doubts, and to unite the opinions on the bench, and prevent that constant division among the judges which has much weakened the authority of some of our American courts.
From the era of the English revolution, the reports increase in value and importance; and they deal more in points of law applicable to the great changes in property, and the commerce and business of the present times. I shall not undertake to speak critically of the particular merits of the modern reports, for this would lead me into too extensive details. Those of Lord Raymond and Serjeat Salkeld embrace the reigns of William and Mary, and Queen Ann; and during that period Lord Chief Justice Holt gave. luster to the jurisprudence of his country. The Reports of sir John Strange, of Lord Chief Baron Comyns, of Lord Chief Justice Willes, and part of the reports of Sergeant Wilson, occupy the reigns of George I and II and they are all respectable, and the reports of Willes and Wilson, in particular, very accurate repositories of the judicial decisions of those reigns. The reports of Lord Raymond and of Sergeant Wilson are also peculiarly valuable to the pleader for the many useful entries and forms of pleadings which accompany the cases. From that period, the English reports are to be read and studied with profound attention. The reports of Burrow, Cowper, and Douglass, contain the substance of Lord Mansfield’s judicial decisions, and they are among the most interesting reports in the English law. All the courts of law at Westminster have been filled with very eminent men since the time of the accession of George III.; and we need only refer to the Term Reports, and to East and his successors, as reporters to the King’s Bench, and to Wilson, Henry Blackstone, Bosanquet & Puller, Taunton, and their successors in the C. B., for views and sketches of the English law in its most correct and cultivated state.
A still deeper interest must be felt by the American lawyer in the perusal of the judicial decisions of his own country. Our American reports contain an exposition of the common law, as received and modified in reference to the genius of our institutions. By that law we are governed and protected, and it cannot but awaken a correspondent attachment. But I need not undertake the invidious task of selection and discrimination among the numerous volumes of the reports of American decisions. Their relative character must be familiar to the profession, and it will be sufficient to advise the student to examine thoroughly, and to obtain the mastery of the principles of law, as expounded and declared by our more important tribunals, whether they be of federal or of state jurisdiction.
We have hitherto confined our attention to the reports of cases in the courts of common law. But the system of equity is equally to be found embodied in the reports, of adjudged cases; and the maxims of the Court of Chancery are as fixed as those which govern other tribunals. That court is as much bound as a court of law, by a series of decisions applicable to the case, and establishing a rule. It has no discretionary power over principles and established precedents, and Chancery has grown to be a jurisdiction of so much strict technical rule, that it is said by a distinguished writer on equity doctrines, that there are now many settled rules of equity which require to be moderated by the rules of good conscience, as much as the most rigorous rules of law did before the chancellors interfered on equitable grounds.22 A court of equity becomes in the lapse of time, by gradual and almost imperceptible degrees, a court of strict technical jurisprudence, like a court of law. The binding nature of precedents in a court of equity was felt and acknowledged by Lord Keeper Bridgman, in the reign of Charles II;23 and in the case of The Earl of Montague v. Lord Bath,24 soon after the revolution, Lord Chief Justice Treby, who sat for the Lord Chancellor, declared, that the Court of Chancery was limited by the precedents and practice of former times, and that it was dangerous to extend its authority further. At this day, justice is administered in a court of equity upon as fixed and certain principles as in a court of law; and Lord Eldon has secured to himself a title to the reverence of his countrymen, for resisting the temptation so often pressed upon him, to make principles and precedents bend to the hardship of a particular case. In this country it is at least as important as in any other that the administration of justice, both legal and. equitable, should be stable and uniform; and especially if there be any weight in the opinion of an ancient English lawyer, that “variety of judgments, and novelty of opinions, were the two plagues of a commonwealth.”25
We have no reports of chancery decisions until subsequent to the time of Lord Bacon. Anciently, the Court of Chancery administered justice according to what appeared to be the dictate of conscience as applied to the case, without any regard to law or rule; and great inconvenience and mischief must have been produced in the infancy of the court, by reason of the uncertainty and inconsistency of its decisions, flowing from the want of settled principles. The jurisdiction of the court was greatly enlarged in the time of Cardinal Wolsey, who was chancellor under Henry VIII; and he maintained his equitable jurisdiction with a high hand, and exercised his authority over every thing which could be a subject of judicial inquiry, and decided with very little regard to the common law. There was an extraordinary influx of business during his administration. This conduct in his judicial capacity was one of the grounds of accusation against him when he was impeached. Under his successor, Sir Thomas More, who was the first chancellor that ever had the requisite legal education, business rose again with rapidity, and to such extent as to require the assistance of a master of the rolls. He allowed injunctions so freely as to displease the common law judges, though he acted always with great ability and integrity.26 To show how wonderfully business in chancery had increased by the time of Lord Bacon, we need only recur to the fact which he gives us himself,27 that he made two thousand orders and decrees in a year and yet we have not a single decision of his reported. Those decisions, if well and faithfully reported, would doubtless have presented to the world a clear illustration and masterly display of many principles of equity since greatly considered and discussed; for even upon dry technical rules and points of law, he shed the illuminations of his mighty mind.
In West’s Symboleography, a work published at the close of Elizabeth’s reign, we have diverse curious and authentic precedents of the process, and bills, and answers in chancery, prior to the time of Bacon. We have also, in the same work, a brief digest of the powers and jurisdiction of the court, from which it would appear, that equity was regarded in that day as a matter of arbitrary conscience, unencumbered by any rules or principles of law. No cases are cited to show what the authority was, but such as were gleaned from the Year Books, and the treatises of the Doctor and Student, and of the Diversity of Courts. It was not until after the restoration, that any reports of adjudged cases in chancery were published. The volumes, entitled, “Reports of Cases taken and adjudged in the Court of Chancery in the reign of Charles I, Charles II., James II., William M., and Queen Anne,” commence with the reign of Charles I, and contain the earliest adjudged cases in equity. But that work, and another contemporary work of the same character, entitled, “Cases argued and adjudged in the High Court of Chancery,” are both of them, in their general character, loose, meager, and inaccurate reports, of not much weight or authority. But the report of some cases decided by Lord Chancellor Cowper, in the third and last volume of the Reports in Chancery, and the great case of the Duke of Norfolk, and the case of Bath and Montague, at the conclusion of the Cases in Chancery, are distinguished exceptions to this complaint, and those great cases are fully and very interestingly reported. In the latter part of the reign of Charles II, Lord Chancellor Nottingham raised the character oft he court to high reputation, and established both its. jurisprudence and its jurisdiction upon wide and rational foundations. We have but few reports of his decisions that are worthy of his fame. They are dispersed through several works of inferior authority. It is from his time, however, that equity became a regular and cultivated science, and the judicial decisions in chancery are to be carefully studied.
Vernon’s Reports are the best of the old reports in chancery. They were published from his manuscripts, after his death, by order of Chancellor King, and were found to be quite imperfect and inaccurate. In 1806, Mr. Raithby favored the profession with a new and excellent edition of Vernon, enriched by learned notes, and accurate extracts from the register’s books, so that the volumes assumed a new dress. and more unquestionable authenticity. Those reports include part of the judicial administration of Lord Nottingham, and the whole of the time of Lord Somers; but they give us nothing equal to the reputation of those great men. They bring the series of equity decisions down to the conclusion of Lord Chancellor Cowper’s judicial life.
Precedents in Chancery is a collection of cases between 1689 and 1722; and the author of those reports, and of the first volume of Equity Cases Abridged, is generally supposed to be the same person. They are works which contain very brief cases in comparison with the voluminous details of modern reports; but they are of respectable authority.28 Peere Williams’ Reports extend from the beginning of the last century to the year 1735, and they embrace the period of the decisions of a succession of eminent men who presided in chancery in the former part of the last century. The notes of Mr. Cox to the fourth edition of these reports, gave to that edition the character of being the best edited book on the law. Even before his learning and industry had given new character and value to the reports of Peere Williams, they were regarded as one of the most perspicuous, useful, and interesting repositories of equity law to be found in the language.
Moseley’s reports of cases, during the time of Lord King, have received a various and contradictory character and treatment. Lord Mansfield said it was a book not to be quoted; but Lord Eldon, who is presumed to have been a better judge of the merits of the work, says, that Moseley is a book of considerable accuracy.29 It is fortunate that we have even so imperfect a view of the decisions of Lord King, who was an eminent scholar, and to whom Mr. Locke bequeathed his papers and library.
Lord Talbot presided in chancery but a very few years. he was a pure and exalted character, who died in the vigor of his age, and his loss was lamented as a great national calamity. The cases during his time, under the title of Cases tempore Talbot, are well reported, and have a reputation for accuracy.
Lord Hardwicke, the successor of Lord Talbot, held the great seal for upwards of twenty years, and the present wise and rational system of English equity jurisprudence, owes more to him than perhaps to any of his predecessors. His decisions are reported in the elder Vesey, and Atkyns, and partly in Ambler and Dickens; and though none of them are eminent reporters, either for accuracy or precision in the statements of the cases, or in giving the judgment of the court,30 yet the value of his opinions, and the great extent of his learning, and the solidity of his judgment have been sufficiently perceived and understood. There is no judge in the juridical annals of England, whose judicial character has received greater and more constant homage. His knowledge of the law, said a very competent judge, was most extraordinary, and he was a consummate waster of the profession.31 His decisions at this day, and in our own courts, do undoubtedly carry with them a more commanding weight of authority than those of any other judge; and the best editions of the elder Vesey and Atkyns will continue to fix the attention and study of succeeding ages.
Eden’s Reports of the decisions of Lord Northington, the successor to Lord Hardwicke, are very authentic, and highly esteemed. They surpass in accuracy the reports ether of Ambler or Dickins within the same period, and the authority of Lord Northington is very great, and it arose from the uncommon vigor and clearness of his understanding. The next book of reports of deserved celebrity is Brown, commencing with Lord Thurlow’s appointment. to the office of chancellor; and the high character of the court at that period, gave to those reports a very extensive authority and circulation, and for which they were indebted more to the reputation of the chancellor, than to any merit in the execution of the work. Cox’s Cases in Chancery give us the decisions of Lord Kenyon while he was master of the rolls under Thurlow, as well as the decisions of the lord chancellor during the same period. They were intended as a supplement to the reports of Brown and the younger Vesey, so far as those reports covered the period embraced by these cases, and they are neat, brief, and perspicuous reports of unquestionable accuracy. A new and greatly improved edition has lately been published in New York under the superintendence of one of the masters in chancery.
The reports of the younger Vesey extend over a large space of time, and contain the researches of Sir Richard Pepper Arden as, master of the rolls, and the whole of the decisions of Lord Loughborough, and carry us far into the time of Lord Eldon. These reports are distinguished for their copiousness and fidelity. The same character is due to the reports of his successors; and though great complaints have been made at the delay of causes, arising from the cautious and doubting mind of the present venerable lord chancellor of England, it seems to be universally conceded, that he bestows extraordinary diligence in the investigation of immense details of business, and arrives in the end at a correct conclusion, and displays a most comprehensive and familiar acquaintance with equity principles. It must, nevertheless, be admitted, that the reports of Lord Eldon’s administration in equity, amounting to perhaps thirty volumes, and replete with attenuated discussion, and loose suggestions of doubts and difficulties, are enough to task very severely the patience of the profession.
There are recent reports of decisions in other departments of equity, which are deserving of great attention. The character of those branches of the equity jurisdiction is eminently sustained; and the reported decisions of Lord Redesdale and Lord Manners, in the Irish Court of Chancery, are also to be placed on a level, in point of authority, with the best productions of the English bench.
Upon our American equity reports, I have only to observe, that being decisions in cases arising under our domestic laws and systems, they cannot but excite a stronger interest in the mind of the student; and from their more entire application to our circumstances, they will carry with them the greater authority.
I have now finished a succinct detail of the principal reporters; and when the student has been thoroughly initiated in the elements of legal science, I would strongly recommend them to his notice. The old cases prior to the year 1638, need only be occasionally consulted, and the leading decisions in them examined. Some of them, however, are to be deeply explored and studied, and particularly those cases and decisions which have spread their influence far and wide, and established principles which lie at the foundations of English jurisprudence. Such cases have stood the scrutiny of contemporary judges, and been illustrated by succeeding artists, and are destined to guide and control the most distant posterity. The reports of cases since the middle of the last century, ought, in most instances, to be read in course, and they will conduct the student over an immense field of forensic discussion. They contain that great body of the commercial law, and of the law of contracts. and of trusts, which governs at this day. They are worthy of being studied even by scholars of taste and general literature, as being authentic memorials of the business and manners, of the age in which they were composed. Law reports are dramatic in their plan and structure. They abound in pathetic incident, and displays of deep feeling. They are faithful records of those “little competitions, factions, and debates of mankind,” that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, and the machinations of fraud. They give us the skillful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true portraits of the talents and learning of the sages of the law. We should have known but very little of the great mind and varied accomplishments of Lord Mansfield, if we had not been possessed of the faithful reports of his decisions. It is there that his title to the character of “founder of the commercial law of England,” is verified. A like value may be attributed to the reports of the decisions of Holt, Hardwicke, Willes, Wilmot, De Grey, Camden, Thurlow, Kenyon, Sir William Scott, and many other illustrious names, which will be as immortal as the English law.
Nor is it to be overlooked as a matter of minor importance, that the judicial tribunals have been almost uniformly distinguished for their immaculate purity. Every person well acquainted with the contents of the English reports, must have been struck with the unbending integrity and lofty morals with which the courts were inspired. I do not know where we could resort, among all the volumes of human composition, to find more constant, more tranquil, and more sublime manifestations of the intrepidity of conscious rectitude. If we were to go back to the iron times of the Tudors, and follow judicial history down from the first page in Dyer to the last page of the last reporter, we should find the higher courts of civil judicature, generally, and with rare exceptions, presenting the image of the sanctity of a temple, where truth and justice seem to be enthroned, and to be personified in their decrees.
1. Lord Chief Justice Wilmot, 2 Wils. Rep. 348, 351.
2. Preface to Roile’s Abridgement.
3. The number of volumes of English Reports, exclusive of reports relating to the courts of admiralty, elections, settlement cases, and Irish reports, amount at present, it is said, to 364: and to render their contents accessible, the digested indexes of the modern reports amount to 33 volumes. The text books, or treatises; amount to 184 volumes, and the digests and abridgments to 67 volumes making, in the whole, a copious library of 648 volumes, in addition to the statute law. See Humphreys on Real Property, p. 163. To these we may add upwards of 200 volumes of American reports, treatises, and digests.
4. M. Camus annexed to his Letters sur la Procession d’Advocat, a catalogue of select books for a lawyer’s library, and which be deemed the most useful to possess and understand; and that catalogue, in the edition of 1772, included near 2,000 volumes, and many of them ponderous folios, and not one of them had any thing to do with the English statute or common law. It is now a complaint in France, that the crowd of reports of decisions encumber the law libraries; and M. Dupin, in his Jurisprudence des Arrets, edit. 1822, alludes to the immensity of such collections, and the great abuses to which that species of jurisprudence is subject.
5. Bacon’s Aphorisms, De accummulatione legum nimia, Aph. No. 53-58. De novis digestis legum, Aph. No. 59-64. De scriptoribus authenticis, Aph, No. 78.
6. 16 Johnson, 402.
7. 20 Johnson, 722
8. Jones’ Essay on Bailment, p. 46.
9. 33 Hen. VI. 41.
10. Cro. Jac. 527.
11. Aphor. 46. Bacon’s Works, vol. 7, 448.
12. Best, Ch. J. 2. Bing, 229.
13. M. Dupin. in his Jurisprudence des Arrets, has given us many excellent rules and observations on the value, and on the abuse of the authority of reports of judicial decisions. He admits the force of them when correctly stated, and applied with discernment and sobriety; and that they have the force of law when there has been a series of uniform decisions on the same point, because they then become conclusive evidence of the law. The immense collection of reports by M. Merlin, in his Repertoire, and especially in his Questions de Droit, he would say, had the stamp of Papinian, if it were permitted to compare any lawyer to Papinian.
14. Entretiens sur les Sciences, et eur la maniere d’etudier.
15. 2 Taunton, 201.
16. Preface to Plowden’s Reports.
17. In a recent case in 1 Barnewall & Cresswell, 410, the Court of King’s Bench decided a case chiefly upon the authority of a citation from the Year Book of 42 Edw. III; but such a reference is rare.
18. 3 Term, 84.
19. Bacon’s Works, vol. 6. p. 122.
20. Lord Bacon’s Works, vol. 6. 121, 128, 132, 171.
21. 3 Burr. 1730. 2 Bos. & Pull. 23.
22. Sugden’s Letters to a Man of Property, p. 4.
23. 1 Mod. 307.
24. 3 Ch. Cas. 95.
25. Pref. to Jenkins’ Centuries.
26. Reeves’ History of the English Law, vol. 4. p. 368-377.
27. Bacon’s Works, vol. 4. p. 530.
28. 1 Vesey, J. 547. 3 Vesey, 285. 5 Vesey, 664.
29. 3 Anst. 861. 5 Burr. 2629. 1 Merivale, 92.
30. Butler, J. in 6 East, 29. n. Sir J. Mansfield, in 5 Taunton, 64. 4 Vesey, 138. n. Pref. to Eden’s Reports. 1 Sch. & Lef. 240.
31. Lord Kenyon, 7 Term, 416.