Law Lectures at the Incorporated Law Society. ing any question of right, which has not already been adjudicated upon. As to such customs, therefore, this originally unwritten portion of Common Law may be said to have been converted into written, evidenced by the records of the Courts and the consent of ancient text writers. Claims thus established, customs thus verified, cannot be shaken by succeeding judges, unless those who deny to them the right of making law, will give them a power equivalent in effect, the power to abrogate principles established by ancient precedents. Into what a vortex of revolutions would private rights be drawn by the ascendancy of such a doctrine! Our Courts of Law would be turned into schools of casuistry, and a merely speculative reason be placed on the judgment-seat. With out a rule of right, save that contained in the breast of the Judge, decisions would vary as men's consciences: to-day's success would be no security for a like result in a like case to morrow; and worse would be the condition of society than if remedies were withheld, and obligations were left to the guards of prudence, and the sanctions of mere opinion and morality. 55 policy." Judge-made, though it be, yet made in such a manner, the Common Law ever presents a smooth and even tenor. In vain will you search it for salient points corresponding with those which history has occasionally to record in the march of society. More stable than the forms by which we are constituted a people under a limited monarchy, Law, the Common Law, being Judge-made, remains the same, when the throne is shaken to its centre. Commonwealth, or King, in the breast of our Hales, still prevail the same principles, the same equanimity. How many objections to Judge-made law are outweighed by this advantage! No merely arbitrary discrepancies to be found between the law and the national character. Every thing which follows, either identical with something which precedes, or differing only by those nice degrees which agree with the quiet growth and change of society. The Common Law thus would always have remained relatively the same, but for a new spirit occasionally interpolated into it by parliament; but where no such interpolations have taken place, the new of to-day is to the wants and circumstances of to-day what the obsolete was to by-gone ages. In praising thus the Common Law, I wish it not to be supposed that I consider it faultless, either in its details or as a system. All I have said amounts only to this plain propositionnamely, that without assuming legislative functions, the Courts of Common Law have sup But there is still another portion of the Common Law, open to the objection of being judge-made, to which my defence has not been extended. I allude to the class of cases alto- | gether modern in their circumstances, and yet not provided for by any statute. Now, if parliament, knowing, as we must assume it does, the vacuities and defects of the existing legis-plied, in the best possible manner, but in a lation, still makes no law, and so neglects its proper duty, it may be inferred, in favour of a jurisdiction established by usage, that such cases were intentionally left to be decided as the Courts had theretofore decided in new cases. And upon what principle do the Courts decide in such cases? Suppose it to be one involving a question of popular privilege, the right of an individual, for example, to be present at a particular sitting of some inferior Court of Justice. Is the discussion of this right conducted with reference to principles of general politics? Are the counsel arrayed against one another as under the banners of party? So entirely the contrary is the fact, that it is hardly possible for any counsel to give satisfaction to a partizan, to a client of strong political feelings, though, in that very respect, there may be a great accordance between them in private. In the sacred presence of justice, nothing is known either of Montagues or Capulets. Sublimated from party views, yet not above the common failings of the best principled humanity, the Judge will hear of nothing but legal analogies. He decides according to some rule or principle laid down expressly or impliedly in a similar case by his predecessor; and if taunted by faction, he says, and may justly say, "With the convenience of the decision I have nothing to do: if it is inconvenient, parliament should have repealed the law contained in the cases by which I am governed, and rescuing me from the sway of analogy, have laid down for me a rule more consonant with your views, and perhaps my own, of public manner still essentially defective, the want of a written and positive system. Do I say that all these decisions are what might be expected or desired in the way of legislation? By no means. But, that as Judge-made law is not made on the principles of legislation, it is not open to complaint as against bad legislation. Besides, it may be doubted whether any portion of the Common Law is open to any censure at all, if it is viewed in a true relative position. To look at the things, or the men of former times, merely through the medium of the light in which we ourselves stand, is a prejudice which does great injustice. What was their circle of knowledge; what their capabilities; what their assistances; what the light in which they and the things by which they were surrounded stood; what the feelings, the condition, the wishes of their contemporaries; what the general advance of all the sciences, ought to be considered. How many of the habits and tastes which influence our judgment, which give us our bias, which form our standard of criticism, are purely modern; the fruit of new discoveries, new arts, or of heretofore unthought of applications of known principles. It is from this rapid and glorious march of improvement that the comparatively stationary character of the law, in certain respects, becomes conspicuous, without however bringing any just blame to the Judges, who, till parliament interferes, must still be confined within the circle of precedents and analogies. Yet even with reference to the altered character of the times, the common law would in 56 Law Lectures at the Incorporated Law Society.-Doubts, &c. laws made by parliament. Take for instance, the article, trade. Unsupported by a grant or prescription, the Common Law knows nothing of monopolies. All the rubbish also, now partly swept away, by which dealings, prompt. ed by the mutual interests of individuals, have at different times been forbidden or hindered, is to be found, not in the Common Law, but in Statutes. most respects present less discrepancy than the | rent truism. If two cases, or twenty cases, go to the same point, the multiplication at once removes all doubt, renders the law absolutely certain, and throws a stronger light on its application. If the same number of cases go to different points, then, one by one, they convert into text-matter, and into what must be the chief text-matter of any code, the law, theretofore unrecorded and unwritten. The evil in this case is precisely the same as the multiplication of articles in a code or written system; and therefore, even without the light of experience derived from the administration of the continental codes, we might upon general principles assert, that slighter far than the English friends of codification imagine, is the difference between case law and code law, or law written. In case law, in the common law in the present day, we have in the concrete, what in the code, if the code is correct, is merely in the form of a naked proposition. If it is said our cases and reports will still remain as a commentary to guide the application of the code: I shall reply in the words of St. German ;-"I think verily more doubt and questions would arise upon the statute, (that is, upon the code,) than doth now, when they be argued after the common law, and decided by secondary conclusions, derived from the law of reason;' or if not, still, if a commentary of cases is needed, how small is the value of codification, scarcely more, than it puts the law into a state the fitter for sciolists and quacks, and the easier for promulgation, but will it render it more certain? Although great inconveniences might a priori have been expected from an unwritten system of law, it is interesting, and not without practical use, to observe how these inconveniences have been lessened and compensated by the peculiar circumstances of its administration, and particularly by the situation and number of the Common Law judicatories. In one place, I may say in the metropolis, the centre of our civilization, the focal point where the national intelligence is strongest and brightest, where commerce too carries on her most important transactions; There, are stationed the three Courts, in which all unwritten Common Law has its rise. From this contiguity, have flowed the most important consequences; by constantly admitting of mutual consultations, it secured to each the knowledge of the acts and proceedings of the others; and thus the Common Law has been remarkably distinguished for its uniformity, and the general harmony of its principles and decisions. As to uncertainty too, moral certainty of what would be the decision of the Judge in any case, in any dispute, is all that can be obtained, whether the law is written or unwritten. If the law is, as the Common Law, unwritten, and the case falls under some predicament on which there has been already a decision, the uncertainty with relation to the case in dispute is merely, whether the Court will take such a view of the facts as to bring the case under the supposed predicament. This kind of uncertainty is not an uncertainty of the aw, but an uncertainty as to the effect of the [Our limits have prevented the insertion of the whole of the Lecture; but we hope to avail ourselves of the concluding part, on the subject of Local Courts, at a fitting opportu nity. ED.] evidence, and must occur equally, even if the DOUBTS ON THE LIMITATION OF law were written; and hence "the glorious un- inaccessible and incomprehensible; I reply, ACTIONS ACT. To the Editor of the Legal Observer. Sir, HAVING repeatedly received considerable assistance from your work, and having in my turn sometimes endeavoured to repay the obligation by answering some of the queries contained in it, will you allow me to beg the attention of your other correspondents to the following important questions on the new Limitation of Actions Act, 3 & 4 W. 4. c. 27. By sections 2 and 24 of that act, after the 1st of January, 1834, no land or rent is to be recovered, either at law or in equity, but within twenty years after the right of action or suit shall have accrued to the claimant or some person whose estate he claims. Doubts on the Limitation of Actions Act.-Abstracts of Recent Statutes. By the 36th section, however, all real and mixed actions are preserved until after the 31st of December, 1834. And by the 37th, they may be brought until the 1st of June, 1835, by any person who, on the 31st of December, 1834, shall not have a right of entry on the land which he claims, notwithstanding the twenty years shall have expired; and section 38 provides, that when, on the 1st day of June, 1835, any person's right of entry to any land shall be taken away by any descent, cast, continuance, or warranty, he may bring his real action after the 1st day of June, 1835, but only within the period during which under this act an entry might have been made by such person; that is to say, twenty years. Now, Sir, under these sections, how can a purchaser be safe in accepting a twenty years title, at any rate for the next twenty years? And will it not be still necessary for that period to require a sixty years title; as the rights of the persons entitled for that time are preserved by this act for at least twenty years? And is this the true construction and meaning of the act? Perhaps some of your correspondents will turn their attention to these questions. Your obedient servant, A CONVEYANCING COUNSEL. 57 such altered device or devices respectively thereon as the said Commissioners shall think fit, to be provided and used in lieu of the die or dies so discontinued. 17. That whenever the said Commissioners shall determine to discontinue the use of any die or dies, and shall provide any new die or dies to be used in lieu thereof, and the said Commissioners shall give public notice thereof by advertisement in the London and Edinafter such day or time as shall be fixed and burgh Gazettes respectively, then from and appointed by such advertisement, not being within the space of one calendar month next after the same shall have been published in the said Gazettes respectively, the said new die or dies so provided shall be the only true and lawful die or dies for denoting the duty charged or chargeable in any case to which such die or dies is or are respectively applicable; and all deeds and instruments for the marking or stamping of which any such new die or dies shall have been provided, and which after the day so fixed and appointed as aforesaid shall be ingrossed, written, or printed upon vellum, parchment, or paper stamped or marked with any other die or dies than the said new die or and all such deeds and instruments as aforeso provided for the same as aforesaid, said which, having been ingrossed, written, or printed upon vellum, parchment, or paper stamped or marked as last aforesaid, shall not have been executed or signed by any party thereto before or upon the said day so fixed and appointed as aforesaid, shall respectively be deemed to be ingrossed, written, or printed on vellum, parchment, or paper not duly dies ABSTRACTS OF RECENT STATUTES. stamped or marked as required by law: Pro FORGERY OF STAMPS, 3 & 4 W, 4. c. 97. [Continued from p. 41.] THE 16th, 17th, and 18th clauses, which relate to the new Dies to be used, and which inay be changed by the Commissioners, on giving one month's notice in the Gazette, require the attention of the Profession, as an erroneous stamp will invalidate the instrument. By the proviso at the conclusion of section 17, deeds executed abroad may have the new stamps affixed within one month after their arrival, and without penalty. New Dies. 16. That it shall be lawful for the Commissioners of Stamps from time to time, whenever they shall deem it necessary or expedient, to discontinue the use of all or any of the dies heretofore provided or used, or at any time hereafter to be provided or used, for denoting or marking any stamp duty which now is or at any time hereafter shall be by law payable for or in respect of any matter or thing whatsoever, and to cause any new die or dies, with vided always, that in the case of any deed or instrument required to be stamped or marked with such new die or dies as aforesaid which shall be ingrossed, written, or printed upon vellum, parchment, or paper stamped or marked otherwise than with such new die or dies, and which after the said day or time so fixed or appointed as aforesaid shall be first executed or signed by any party thereto at any place out of the United Kingdom, it shall be lawful for the said Commissioners, and they are hereby required, upon proof of the facts to their satisfaction, to cancel and allow the stamp or stamps impressed on such deed or instrument, and to cause such deed or instrument to be stamped or marked with such new die or dies, to the same amount of duty, without payment of any penalty, provided such deed or instrument shall be produced to the said Commissioners for the purpose aforesaid within one calendar month next after the same shall arrive in this kingdom. 18. Provided that whenever the said Commissioners shall discontinue the use of any die or dies, and shall provide any new die or dies to be used in lieu thereof, and shall give public notice thereof by advertisement in the manner directed by this act, it shall be lawful for all persons who shall have in their custody or possession any vellum, parchment, or paper stamped or marked with any die or dies in lieu 58 Abstracts of Recent Statutes.-The late Professor Park. Officers to take Affidavits. of which any such new die or dies shall have been | artificial mineral waters; and the 21st allows a provided, and which vellum, parchment, or pa- drawback on the exportation of gold and silver per shall, by reason of the providing of such plate manufactured in Ireland. new die or dies, be rendered useless or inapplicable for the purposes for which the same was originally designed, to send the same to 22. That it shall be lawful for the said Comthe head office for stamps in Westminster or Inissioners, and they or any two of them are Edinburgh at any time within three calendar hereby authorized, to appoint by writing under months next after the day so fixed and ap- their hands and seals any officer employed unpointed by such advertisement as aforesaid; der them to take and receive any affidavit or and it shall be lawful for the said Commission-affirmation which is now by law authorized to ers, or for any officer of stamp duties duly authorized in that behalf, to cause the stamp or stamps upon such vellum, parchment, or paper to be cancelled, and such vellum, parchment, or paper, or (if the said Commissioners or such officer shall think fit) any other vellum, parchment, or paper to be duly stamped or marked with such new die or dies in lieu of and to an equal amount with the stamp or stamps so cancelled. Spoiled Stamps. be made before the said Commissioners, or any one or more of them; and every such officer so appointed as aforesaid is hereby authorized to take and receive any such affidavit upon the oath of the person or persons making the same, and any such affirmation in the case of persons commonly called Quakers; and if any person making any such affidavit or affirmation shall knowingly and wilfully make a false oath or affirmation of or concerning any of the matters to be therein specified and set forth, every [To be continued.] THE LATE PROFESSOR PARK. To the Editor of the Legal Observer. Sir, Temple, Nov. 19th, 1833. 19. That in any case in which the Commis-person so offending, and being thereof lawsioners of Stamps are or shall be by this act or fully convicted, shall be subject and liable to any other act relating to stamp duties autho- such pains and penalties as by any law now in rized and directed to cancel stamps spoiled or force persons convicted of wilful and corrupt rendered useless or unfit for the purpose in-perjury are subject and liable to. tended, and to make allowance for the same by giving other stamps in lieu thereof, it shall be lawful for the said Commissioners, if they in their discretion shall think fit, instead of giving stamps, to refund and repay to the party entitled to such allowance the amount thereof in money, deducting therefrom such per-centage as is allowed by law on the purchase of stamps of the same description as those in respect of which such allowance shall be made; and it shall also be lawful for the said Commissioners, if they in their discretion shall think fit, to refund and repay to any person possessed of any stamp or stamps which shall not have been spoiled or rendered useless or unfit for the purpose intended, but for which he shall have no immediate use or occasion, the amount or value of such stamp or stamps in money, deducting therefrom such per-centage as aforesaid upon his delivering up such stamp or stamps to the said Commissioners to be cancelled, and proving to their satisfaction that the same was or were purchased by him with a bona fide intent to use the same, and that he has paid the full amount or value denoted by About the time that Professor Park's degree such stamp or stamps, without any deduction, was first announced as an honorary one, I had save and except only the amount of such per- occasion to write to two of the most eminent centage as aforesaid, and further, that such professors in Göttingen, and I availed myself stamp or stamps was or were so purchased of the opportunity to ask whether the account within the period of three calendar months I saw in the English journals was true. The next preceding, and if the same was or were answers conclusively establish three points:so purchased after the passing of this act, then, that the degree was applied for on his bethat the same was or were so purchased by such person at the head office for stamps in Westininster or Edinburgh, or from some distributor or sub-distributor of stamps duly appointed as aforesaid, or from some person licensed under the authority of this act to vend or deal in stamps. Mineral Waters and Plate. In a letter from Mr. Thomas Park, published in your last number, it is pretty plainly insinuated that I have been led by an unworthy motive to depreciate an honour conferred upon his son, the late Professor Park, by the University of Göttingen. An insinuation of this sort, seriously affecting character, ought, in my opinion, to be met without delay, and the answer should, if possible, be circulated amongst the same class of readers as the charge. You will therefore oblige me by printing the following very simple explanation. half; 2, that it was paid for; 3, that it was not what in Göttingen is termed an honorary degree, which means one conferred gratis; though no doubt Mr. Park, as professor and author, might have had it gratis, had the application been made without an offer to pay. It may also be collected from these letters (what indeed any man at all acquainted with Germany must know) that the learned pro The 20th clause repeals the stamp duties on fessors themselves attach no great degree of Superior Courts: House of Lords. importance to the degrees conferred by them. The issue of the marriage were one son and I inclose you extracts distinctly proving these two daughters, for whom, as a further provipoints, and Mr. T. Park is welcome to inspect sion, he, by a deed dated October 1753, for the the original letters if he likes. I dare say the considerations therein mentioned, conveyed a degree was accompanied by some complimen- moiety of his estate at Hatch, in Wiltshire, to tary communication; the formula on such oc- trustees, to his own use, until his son should casions is highly complimentary; but it could attain the age of 21, and then to the son in fee, not have emanated from the faculty of advo- subject, however, to the power of revocation, cates, as there is no such faculty at Göttingen. and to a term for raising a portion of 40007. The law faculty consists of a limited number for each of the two daughters of the second of professors, of whom one of my correspon- marriage; but such portions were not to he dents is unquestionably the most distinguished. raised if the daughters should marry without As I am replying to a father defending (as the written consent of their father or of the he supposes) a son, I shall only add, that my trustees. They did afterwards marry without estimate of Professor Park's character was such consent. In 1758 Mr. Page, the grandwritten in a spirit the very opposite of that father of these children, purchased from Sir H. which Mr. T. Park would trace it to; and IJ. Parker the other moiety of the Hatch estate, think even a partial parent might be satisfied which by his will, dated in 1764, he entailed, with a memoir, which, after many highly flat-together with other estates in Shorter's Court, tering observations, finishes by describing the London, and elsewhere, upon his grandson subject of it as "a national loss." It is for John Parker, the said son of Sir H. J. Parker, Mr. T. Park to explain what he means by by his second wife. once applauded friend;" for his son was applauded, very highly applauded, to the last, and was never a friend of mine in any other than the most general acceptation of the term. Our acquaintance commenced by my praising one of his productions, and was broken off by my blaming another. I have the honour, Sir, to remain your very obedient servant, THE EDITOR OF THE LAW SUPERIOR COURTS. House of Lords. DEVISE.-ELECTION. In order to constitute a case of election, the The appellant, by his bill filed in the Court of Chancery in 1814, stated an indenture of settlement executed by Sir Henry John Parker in 1741, previous to and in contemplation of marriage with Miss Page, his second wife, he having then by a former marriage two daughters, Margaret and Ann Parker, under the latter of whom the appellant's claim to the estates in dispute arose when heir at law. By that settlement Sir H. J. Parker conveyed his freehold house in Salisbury Court, London, his manor of Talton, and other estates in Worcestershire to trustees, to the uses, after the marriage, of himself and his said intended wife for the life of the survivor of them, with remainder to the first and other sons of the marriage successively in tail male, with reversion to himself in fee. John Parker having, in 1766, attained his age of 21, became entitled to a moiety of the Hatch estate, under the deed of 1753, subject to the power of revocation as aforesaid, but free from the term for raising the portions, which were forfeited by his sisters marrying without the conditioned consent. He suffered a recovery of the other moiety entailed on hin by his grandfather, and declared the uses to himself in fee. It further appeared from the pleadings on both sides, that an agreement was afterwards entered into by which the father, (who was said to be then in embarrassed circumstances) in consideration of a sum of money in hand, and an annuity of 2007., was to convey to the son his life interest and reversion of his Talton and other estates, freehold and leasehold, in Worcestershire. This agreement was said to be lost, and the only evidence of it that was produced was an abstract in the handwriting of the family solicitor, in which it was stated that if the son should die in the father's lifetime, or should marry without his consent, the agreement and all the deeds executed in pursuance of it were to be void. This abstract was made evidence in the Court below by being there read by the appellant, from the respondent's answer to his bill; no deeds were executed in pursuance of the agreement, but from that time John Parker laid out a great sum of money (which he had under his grandfather's will) both on the Talton estate, where he resided-his father also residing there-and on the house in Salisbury Court, over which he exercised a dominion, as if it were his own absolutely. John Parker died unmarried in September 1769, in the lifetime of his father, to whom, by his will dated in the same year, he gave a life estate in all his estates whatsoever that he was seised or possessed of, or was or should be entitled to in reversion or expectancy; and from and after the decease of his father he gave all the estates that were devised to him by his grandfather Page, to trustees, upon trust to receive the rents thereof, and pay the same to his sisters of the whole blood, with further limita 59 |