NINETEENTH, TWENTIETH, AND TWENTY-FIRST BY The Right Hon. SYLVESTER DOUGLAS, BARON GLENBERVIE. THE FOURTH EDITION, WITH ADDITIONS: BY WILLIAM FRERE, SERJEANT AT LAW. VOL. I. Equidem cum colligo argumenta causarum, non tam ea numerare soleo, quam expendere. CICERO. London: PRINTED FOR REED AND HUNTER, LAW BOOKSELLERS, BELL YARD, LINCOLN's INN. PREFACE. THE HERE is no species of publication which demands a more scrupulous accuracy than those histories of judicial proceedings and decisions to which the name of Reports has been long appropriated. The immediate province of the courts of justice is to administer the law in particular cases. But it is equally a branch of their duty, and one of still greater importance to the community, to expound the law they administer upon such principles of argument and construction as may furnish rules which shall govern in all similar or analogous cases. Such are the various modifications of which property is susceptible, so boundless the diversity of relations which may arise in civil life, so infinite the possible combinations of events and circumstances, that they elude the power of enumeration, and are beyond the reach of human foresight. A moment's reflection, therefore, serves to evince, that it would be impossible, by positive and direct legislative authority, specially to provide for every particular case which may hap Hence it has been found expedier t to entrust to the wisdom and experience of ju ges, the power a 2 power of deducing, from the more general propositions of the law, such necessary corollaries, as shall appear, though not expressed in words, to be within their intent and meaning. Deductions thus formed, and established in the adjudication of particular causes, become, in a manner, part of the text of the law. Succeeding judges receive them as such, and, in general, consider themselves as bound to adhere to them no less strictly than to the express dictates of the legislature. But whether a certain decision was ever pronounced, and, if it was, what were the reasons and principles upon which it was founded, are matters of fact, to be ascertained and authenticated, as all other facts are, by evidence. The law of this country has been peculiarly watchful to prevent the approaches of falsehood, in the investigation and proof of the particular facts litigated between contending parties. For this purpose many rules have been established relative to the competency or admissibility of evi dence, of all which the ultimate object is, to guard the avenues of belief, and to secure the minds of those who are to determine, from imposition and mistake. It would be natural to expect a caution still more rigid with regard to the evidence of judicial proceedings and decisions. Whether a particular act was done, or contract entered into, by a party to a cause, or not, can only affect him and his opponent, or, at most, those who become their representatives; and should that be pronounced to have happened, which in truth never did, third persons would not be injured. But whether a judgment alleged to have been delivered, was really delivered, and upon the alleged reasons, may affect all persons who are, or shall be, in circumstances circumstances similar to those of the parties to that cause. Yet it has somehow or other hap-, pened, that little or no care has been taken, nor any provisions made, to render the evidence of judicial proceedings certain and authentic. The records of the court are, indeed, framed in such a manner as to constitute indisputable do-, cuments of such parts of the proceedings as are comprised in them, but it is easy to shew that this goes but a very little way. In the first place, the authority of a decision, for obvious reasons, is held to be next to nothing, if it passes sub silentio, without argument at the bar, or by the court; and it is impossible from the record of a judgment to discover whether the case was solemnly decided or not. Records, therefore, even when they contain a sufficient state of the case, do not afford complete evidence of what is requisite to the future authority of the decision. But, in the second place, it is well known in how few instances the material parts of the state of the case can be gathered from the record. According to the modern usage, by far the greater number of the important questions agitated in the courts of law come before them upon motions for new trials, cases reserved, or summary applications of different sorts. In none of those instances does the record furnish the evidence even of the facts; for which, in such cases, there is no other. repository, nor for the arguments and reasoning of the counsel and the court in any case, but the collections made by reporters*. On their fidelity and accuracy, therefore, the evidence of a very great part of the law of England almost entirely depends. At an early period of our constitution, the reasons of the judgment were set forth in the record, but that practice has long been disused. |