When we censure those who have gone before us for inefficiency in law reform, we should recollect that we ourselves have never solved the problem of recompensing professional labour without the test of the length of law proceedings, and that till this is done all attempts to check prolixity will be vain. [Note:] A striking illustration of the brevity which lawyers could attain, there being no interest to be verbose, is the judgment of death upon a felon, which, as there was no fee according to the number of words contained in it, was thus recorded, “SUS PER COL.”
Lord Campbell: Lord Chancellors, iii.: Life of Lord King.
If Lord Nottingham drew it [the Statute of Frauds ], he was the less qualified to construe it: the author of an act considering more what he privately intended, than the meaning he has expressed.
Lord Campbell: Lord Chancellors, iii.: Life of Lord Nottingham.
We consider a law for punishing false pleading as indispensably necessary to the expeditious and satisfactory administration of justice, and we trust that the passing of such a law will speedily follow the appearance of the code of procedure.
Lord Thomas Babington Macaulay : Notes on the Indian Penal Code: Macaulay’s Works, 1866, 8 vols. 8vo, vii. 484.
When we pass from the science of medicine to that of legislation, we find the same difference between the systems of these two great men [Plato and Bacon]. Plato, at the commencement of the Dialogue on Laws, lays it down as a fundamental principle that the end of legislation is to make men virtuous. It is unnecessary to point out the extravagant conclusions to which such a proposition leads. Bacon well knew to how great an extent the happiness of every society must depend on the virtue of its members; and he also knew what legislators can and what they cannot do for the purpose of promoting virtue. The view which he has given of the end of legislation, and of the principal means for the attainment of that end, has always seemed to us eminently happy, even among the many happy passages of the same kind with which his works abound. [De Augmentis, Lib. 3, Cap. 3, Aph. 5.]… The end is the well-being of the people. The means are the imparting of moral and religious Education ; the providing of everything necessary for defence against foreign enemies; the maintaining of internal order; the establishing of a judicial, financial, and commercial system, under which wealth may be rapidly accumulated and securely enjoyed.
Lord Thomas Babington Macaulay : Lord Bacon, July, 1837.
Equity had been gradually shaping itself into a refined science which no human faculties could master without long and intense application.
Lord Thomas Babington Macaulay.
“Law,” said Dr. Johnson, “is the science in which the greatest powers of the understanding are applied to the greatest number of facts;” and no one who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.
Sir James Mackintosh.
The law of England has been chiefly formed out of the simple principles of natural justice by a long series of judicial decisions.
Sir James Mackintosh.
There is not, in my opinion, in the whole compass of human affairs so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautions and unwearied exertions of wise men through a long course of ages, withdrawing every case, as it arises, from the dangerous power of discretion, and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting within the narrowest possible limits the domain of brutal force and arbitrary will.
Sir James Mackintosh.
The arguments on the other side [that is, arguments against admitting the testimony in question from the novelty of the case] prove nothing. Does it follow from thence that no witnesses can be examined in a case that never specifically existed before, or that an action cannot be brought in a case that never happened before? Reason (being stated to be the first ground of all laws by the author of the book called Doctor and Student) must determine the case. Therefore the only question is, whether upon principles of reason, justice, and convenience, this witness be admissible. Cases in law depend upon the occasions which give rise to them.
Lord Mansfield : (when Solicitor-General Murray): Ormichund v. Barker, 1st Atkyns.
All evidence is according to the subject-matter to which it is applied. There is a great deal of difference between length of time that operates as a bar to a claim and that which is used only by way of evidence. Length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, or to draw their inferences one way or the other, according to circumstances. I do not know an instance in which proof may not be supplied.
Lord Mansfield : Mayor of Hull v. Horner: Cowper’s Reports, 109.
General rules are wisely established for attaining justice with ease, certainty, and dispatch; but the great end of them being to do justice, the Court will see that it be really obtained. The courts have been more liberal of late years in their determinations, and have more endeavoured to attend to the real justice of the case, than formerly.
Some are allured to law, not on the contemplation of equity, but on the promising and pleasing thoughts of litigious terms, fat contentions, and flowing fees.
An unwritten law of common right, so engraven in the hearts of our ancestors, and by them so constantly enjoyed and claimed, as that it needed not enrolling.
It was not a moral, but a judicial, law, and so was abrogated;… which law the ministry of Christ came not to deal with.
Laws derive their authority from possession and usance: ‘Tis dangerous to trace them backward to their beginning; they grow great, and ennoble themselves like our rivers by running: but follow them upward to their source, ’tis but a little spring, scarce discernible, that swells thus, and thus fortifies itself by growing old. Do but consult the ancient considerations that gave the first motion to this famous torrent so full of dignity and reverence: you will find them so light and weak, that it is no wonder if these people, who weigh and reduce every thing to reason, and who admit nothing by authority, or upon trust, have their judgments very remote and differing from those of the publick. It is no wonder if people who take their pattern from the first image of nature should in most of their opinions swerve from the common path.
Michel de Montaigne: Essays, Cotton’s 3d ed., ch. lxix.
All beings have their laws; the Deity has his laws, the material world has its laws, superior intelligences have their laws, the beasts have their laws, and man has his laws.
They [the Utopians] have but few laws, and such is their constitution that they need not many. They do very much condemn other nations whose laws, together with the comments on them, swell up so many volumes, for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such a bulk and so dark that they cannot be read or understood by every one of the subjects. They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters as well as to wrest laws; and therefore they think it is much better that every man should plead his own cause, and trust it to the judge.
Sir Thomas More: Utopia.
A law presupposes an agent; this is only the mode according to which an agent proceeds; it implies a power, for it is the order according to which that power acts. Without this agent, without this power, which are both distinct from itself, the law does nothing, is nothing.
The first maxim of a free state is, that the laws be made by one set of men and administered by another: in other words, that the legislative and judicial characters be kept separate.
The wisdom of man hath not devised a happier institution than that of juries, or one founded in a juster knowledge of human life or of human capacity.
Before the invention of laws, private affections in supreme rulers made their own fancies both their treasurers and hangmen, weighing in this balance good and evil.
Sir Walter Raleigh.
It is extremely proper that there should be some general rules in relation to evidence; but if exceptions were not allowed to them, it would be better to demolish all the general rules. There is no general rule without exception that we know of but this,-that the best evidence shall be admitted which the nature of the case will afford. I will show that rules as general as this are broke in upon for the sake of allowing evidence. There is no rule that seems more binding than that a man shall not be admitted an evidence in his own case, and yet the Statute of Hue and Cry is an exception. A man’s books are allowed to be evidence, or, which is in substance the same, his servant’s books, because the nature of the case requires it,-as in the case of a brewer’s servants. Another general rule, that a wife cannot be witness against her husband, has been broke in upon in cases of treason. Another exception to the general rule that a man may not be examined without oath,-the last words of a dying man are given in evidence in the case of murder.
Attorney -General Sir Dudley Ryder.
Our laws are so numerous that, together with their commentaries, they would have furnished sufficient solid reading for Adam had he lived until now; and the best of it is, that he would probably have been as wise when he concluded as when he began.
J. A. St. John: Sir T. More’s Utopia.
No state can be named wherein any part of the body of those imperial laws hath the just force of a law, otherwise than as custom hath particularly induced it.
The Common law of England is said to abhor perpetuities; and they are accordingly more restricted there than in any other restricted monarchy.
The obliging power of the law is neither founded in, nor to be measured by, the rewards and punishments annexed to it.
All law that a man is obliged by is reducible to the law of nature, the positive law of God in his word, and the law of man enacted by the civil power.
It [the divine law] may be taken as a covenant conveying life, upon absolute, entire, indefective obedience, and awarding death to those who fail in the least punctilio.
Laws ought to be fashioned unto the manners and conditions of the people to whom they are meant, and not to be imposed upon them according to the simple rule of right.
There is something sacred in misery to great and good minds; for this reason all wise lawgivers have been extremely tender how they let loose even the man who has right on his side, to act with any mixture of resentment against the defendant.
Sir Richard Steele: Spectator, No. 456.
Casuistry is the department of ethics, the great object of which is to lay down rules or canons for directing how to act wherever there is any room for doubt or hesitation.
Two things speak much of the wisdom of a nation; good laws and a prudent management of them.
No one appreciates more fully than myself the general importance of the study of the law. No one places a higher value upon that science as the great instrument by which society is held together and the cause of public justice is maintained and vindicated. Without it, neither liberty, nor property, nor life, nor that which is even dearer than life, a good reputation, is for a moment secure. It is, in short, the great elastic power which pervades and embraces every human relation. It links man to man by so many mutual ties, and duties, and dependencies, that, though often silent and unseen in its operations, it becomes at once the minister to his social necessities and the guardian of his social virtues.
Judge Joseph Story: Address at Harvard 2d Centen. Anniv., Sept. 8, 1836: Story’s Life and Letters, ii. 254.
The Common law has now become an exceedingly voluminous system; and as its expositions rest, not on a positive text, but upon arguments, analogies, and commentaries, every person who desires to know much must engage in a very extensive system of reading. He may employ half his life in mastering treatises the substance of which, in a positive code, might occupy but a few hundred pages. The codes of Justinian, for instance, superseded the camel-loads of commentaries which were antecedently in use, and are all now buried in oblivion. The Napoleon Codes have rendered thousands of volumes only works of occasional consultation which were before required to be studied very diligently, and sometimes in repeated perusals.
Judge Joseph Story: Encyc. Amer., vii. (1835), Appendix (Law, Legislation, Codes).
The opinion of no jurist, however high or distinguished is his reputation or ability, is of the least importance in settling the law, or ascertaining its construction, in England or the United States. So far as he may, by his arguments, or counsel, or Learning , instruct the court, or enlighten its judgments, they have their proper weight. But if the court decide against his opinion, it falls to the ground. It has no farther effect. The decision becomes conclusive and binding, and other courts are governed by it, as furnishing for them the just rule of decision. No court would feel itself at liberty to disregard it, unless upon the most urgent occasion, and when it interfered with some other known rule or principle; and even then with the greatest caution and deference. In countries where the common law prevails, it is deemed of infinite importance that there should be a fixed and certain rule of decision, and that the rights and property of the whole community should not be delivered over to endless doubts and controversies. Our maxim, in truth, and not in form merely, is, Misera est servitus, ubi jus est vagum aut incertum.
Judge Joseph Story: Encyc. Amer., vii. (1835), Appendix (Law, Legislation, Codes).
Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.
A law may be reasonable in itself, although a man does not allow it, or does not know the reason of the lawgivers.
Hobbes confounds the executive with the legislative power, though all well-instituted states have ever placed them in different hands.
There is no commonplace more insisted on than the happiness of trials by juries; yet if this blessed part of our law be eludible by power and artifice, we shall have little reason to boast.
When the state is most corrupt, then the laws are most multiplied.
In making laws, princes must have regard to the public dispositions, to the affections and disaffections of the people, and must not introduce a law with public scandal and displeasure.
Jeremy Taylor: Rule of Holy Living.
The negative precepts of men may cease by many instruments: by contrary customs; by public disrelish; by long omission: but the negative precepts of God never can cease but when they are expressly abrogated by the same authority.
Jeremy Taylor: Rule of Holy Living.
A good law without execution is like an unperformed promise.
As long as law is obligatory, so long our obedience is due.
What laws more proper to advance the nature of man than these precepts of Christianity?
The laws of this religion would make men, if they would truly observe them, substantially religious toward God, chaste, and temperate.
The laws of our religion tend to the universal happiness of mankind.
Divine law, simply moral, commandeth or prohibiteth actions good or evil in respect of their inward nature and quality.
Dr. Isaac Watts.
After a man has studied the general principles of the law, reading the reports of adjudged cases, collected by men of great sagacity, will richly improve his mind towards acquiring this desirable amplitude and extent of thought.
Dr. Isaac Watts.
“Whate’er is best administered is best,”
may truly be said of a juridical system, and the due distribution of justice depends much more upon the rules by which suits are to be conducted, than on the perfection of the code by which rights are defined.
Lord Campbell: Lord Chancellors, iii.: Life of Lord Somers.
Of all the departments of literature, jurisprudence is the one in which the English had least excelled. Their treatises of highest authority were a mere jumble, without regard to arrangement or diction. Now, for the first time, appeared among us a writer who rivalled the best productions of the French and German jurists. He [Charles Yorke] was not only an admirer, but a correspondent, of Montesquieu ; and he had caught a great share of the President’s precision, and of his animation. In this treatise [Some Considerations on the Laws of Forfeiture for High Treason] he logically lays down his positions, and enforces them in a strain of close reasoning,-without pedantic divisions, observing lucid order;-and drawing from the history and legislation of other countries the most apposite illustrations of his arguments.
Lord Campbell: Lord Chancellors, v.: Life of Lord-Chancellor Charles Yorke.
I delight to think that my special pleading father [William Tidd], now turned of eighty, is still alive, and in the full enjoyment of his faculties. He lived to see four sons sitting together in the House of Lords,-Lord Lyndhurst, Lord Denman, Lord Cottenham, and Lord Campbell. To the unspeakable advantage of having been three years his pupil I chiefly ascribe my success at the bar. I have great pride in recording that when, at the end of my first year, he discovered that it would not be quite convenient for me to give him a second fee of one hundred guineas, he not only refused to take a second, but insisted on returning me the first. Of all the lawyers I have ever known, he has the finest analytical head; and if he had devoted himself to science I am sure that he would have earned great fame as a discoverer. His disposition and his manners have made him universally beloved.
Lord Campbell: Lord Chancellors, v.: Life of Lord Thurlow, note.
While fully aware of the impossibility of reducing the whole law of any civilized country into a written code in which might be found all that judges or legal practitioners can require for the due administration of justice, so that all other law-books might be dispensed with and burned, I was in hopes that the criminal law, from its simplicity and certainty, was a partial exception; but having sat for eleven days with one Chancellor and four ex-Chancellors, Cranworth, Lyndhurst, Brougham, Truro, and St. Leonard’s, upon the single title of “homicide,” I gave up the attempt in despair. We never could agree on a definition of murder or manslaughter. Brougham himself was particularly unhandy at this work, and justified the answer given by Maule, J., to the question whether the attempt could now be safely made:-“I think the attempt would now be particularly dangerous; for the scheme is impracticable, and there are some who believe that they could easily accomplish it.”
Lord Campbell: Lord Chancellors, viii. 580, n.: Life of Lord Brougham.
Shakspeare … is uniformly right in his law and in his use of legal phraseology, which no mere quickness of intuition can account for.
Lord Campbell: Lives of the Chief Justices, i. 43: Reign of King John.
We ought not hastily to accuse him [David Hume] of wilful misrepresentation or suppression, for he was utterly unacquainted with English juridical writers. Gibbon entered on a laborious study of the Roman civil law to fit him to write his DECLINE AND FALL; but Hume never had the slightest insight into our jurisprudence, and his work, however admirable as a literary composition, is a very defective performance as a history. Of the supposed distinction [made by Hume in his History of England, reign of James I.] between a statute and a proclamation-that the former was of perpetual obligation till repealed, and the latter lost its force on a demise of the crown-I do not find a trace in any of our books.
Lord Campbell: Lives of the Chief Justices, i. 276, note: Sir Edward Coke .
In the belief that Coke was humbled as effectually well as the other Judges, the following question was put to them: “In a case where the King believes his prerogative or interest concerned, and requires the Judges to attend him for their advice, ought they not to stay proceedings till his Majesty has consulted them?” All the Judges except Coke: “Yes!” “Yes!” “Yes!” Coke, C. J.: “WHEN THE CASE HAPPENS, I SHALL DO THAT WHICH SHALL BE FIT FOR A JUDGE TO DO.”
This simple and sublime answer abashed the Attorney -General, made the recreant Judges ashamed of their servility, and even commanded the respect of the King himself.
Lord Campbell: Lives of the Chief Justices, i. 286: Sir Edward Coke .
Men with a multiplicity of transactions pressing on them, and moving in a narrow circle, and meeting each other daily, desire to write little, and leave unwritten what they take for granted in every contract. In spite of the lamentations of judges, they will continue to do so; and in a vast majority of cases, of which courts of law hear nothing, they do so without loss or inconvenience; and upon the whole they find this mode of dealing advantageous, even at the risk of occasional litigation. It is the business of courts reasonably so to shape their rules of evidence as to make them suitable to the habits of mankind, and such as are not likely to exclude the actual facts. To exclude the usage is to exclude a material term of the contract, and must lead to an unjust decision.
Laws written, if not on stone tables, yet on the azure of infinitude, in the inner heart of God’s creation, certain as life, certain as death! I say, the laws are there, and thou shalt not disobey them. It were better for thee not. Better a hundred deaths than yea! Terrible “penalties,” if thou wilt still need penalties, are there for disobeying.
Alas! how many causes that can plead well for themselves in the courts of Westminster, and yet in the general court of the universe, and free soul of man, have no word to utter!
It must be confessed by all, that there is a law of nature writ upon the hearts of men, which will direct them to commendable actions, if they will attend to the writing in their own consciences. This law cannot be considered without the notice of a Lawgiver. For it is but a natural and obvious conclusion, that some superior hand engrafted those principles in man, since he finds something in him twitching him upon the pursuit of uncomely actions, though his heart be mightily inclined to them; man knows he never planted this principle of reluctancy in his own soul; he can never be the cause of that which he cannot be friends with. If he were the cause of it, why doth he not rid himself of it? No man would endure a thing that doth frequently molest and disquiet him, if he could cashier it. It is therefore sown in man by some hand more powerful than man, which riseth so high, and is rooted so strong, that all the force that man can use cannot pull it up.
Stephen Charnock: Attributes.
The straitening and confining the profession of the common law must naturally extend and enlarge the jurisdiction of the chancery.
Earl of Clarendon.
And the law, that is the perfection of reason, cannot suffer any thing that is inconvenient … for reason is the life of the law, nay the common law itselfe is nothing else but reason; which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every man’s naturall reason; for Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme, as the old rule may be justly verified of it, Neminem oportet esse sapientorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason.
Coke upon Littleton, sect. 138.
If I am asked a question of common law, I should be ashamed if I could not immediately answer it; but if I am asked a question of statute law, I should be ashamed to answer it without referring to the Statute Book .
Sir Edward Coke: Lord Campbell’s Lives of the Chief Justices, i. 324: Sir Edward Coke.
Those who made laws had their minds above the vulgar: and yet unaccountably the public Constitutions of nations vary.
Law and equity are two things which God hath joined, but which man hath put asunder.
Charles Caleb Colton.
Poetical reports of law cases are not very common, yet it seems to me desirable that they should be so. Many advantages would accrue from such a measure. They would, in the first place, be more commonly deposited in the memory, just as linen, grocery, or other such matters, when neatly packed, are known to occupy less room, and to lie more conveniently in any trunk, chest, or box to which they may be committed. In the next place, being divested of that infinite circumlocution, and the endless embarrassment in which they are involved by it, they would become surprisingly intelligible in comparison with their present obscurity.
William Cowper: To Rev. W. Unwin, Dec. 1780.
Those good laws were like good lessons set for a flute out of tune; of which lessons little use can be made till the flute be made fit to be played on.
Sir John Davies.
Give us leave to enjoy the government and benefit of laws under which we were born, and which we desire to transmit to our posterity.
Said Lord Bacon, “So great is the accumulation of the statutes, so often do those statutes cross each other, and so intricate are they, that the certainty of the law is entirely lost in the heap.” Lord Bacon said this when the number of our public statutes was two thousand one hundred and seventy-one. Thus, the profoundest brain that ever a wig covered, pronounced itself to be lost in the maze of a law constructed of two thousand one hundred and seventy-one disjointed statutes. From his day to our own, the maze has been incessantly in progress of enlargement. New laws are hung on to the outskirts of the rest, faster than new streets on the outskirts of this our metropolis; new legal neighbourhoods spring up, new streets of law are pushed through the heart of old established legislation, and all this legal building and improvement still goes on with little or no carting away of the old building materials and other rubbish…. 129
If, therefore, two thousand statutes perplexed Bacon, what sort of a legal genius must he be who can feel easy with eighteen thousand on his mind? It is manifest that in these law-making days it should need nine Bacons to make one Judge.
Household Words, March, 1856.
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