posed by an American writer, which to me appears valuable, in that it is doing something towards our emancipation from the too great authority of what a lord may have said. In 4 T. R. 512, lord Kenyon states, "That it is incumbent on a party who wishes to establish a point contrary to all justice and equity, to produce some direct authority shewing that there is an inflexible rule of law established in opposition to justice." This by implication admits that rules of law may be established by decisions contrary to all justice and equity. On another occasion, he uses words which throw a light on the subject of decisions. "If this question," says he, were at rest, either by reason of decided cases, or by the general opinion of Westminster Hall, I should not be inclined to disturb it now. But I perfectly well remember that when the Taunton case was argued, so far from the profession acquiescing in what was thrown out by the three judges immediately after the argument, great doubts were entertained about it." And 5 T. R. 556, "The cases cited from Ventris, ought not to be treated lightly, or overturned without great consideration, because it has the sanction of lord Hale's name. But as at present advised, I confess it appears to me that the reasons given in support of that judgment are strong to shew that the decisions ought to have been the other way." In 5 T. R. 682, he says, "I do not think that the courts ought to change the case, so as to adapt it to the fashion of the times; if an alteration in the law be necessary, recourse must be had to the legislature for it." But in contrast with this dictum of lord Kenyon, I give the bold sentiments of the canonist Gomery, which I find quoted and approved by some chancery writers; "Non est inconveniens judicium esse uno tempore justum, et postea ejus contrarius justius. Opiniones secundum varietatem temporum senescant et intermoriantur, alioque diversæ renascuntur et deinde pubescant." This I take to be found in the nature of things; and though the principles of justice are always the same, yet the application of general rules, even in the like case, may from extrinsic circumstances become unequal and unjust. And this is one great advantage of a jury trial, where the heart can feel the right which the head is at a loss to ascertain; and hence a consideration which ought to have a powerful effect in governing the discretion of a court in granting new trials, certain it is that even where a judge lays down the law, speaking of decisions, it ought to be sparingly said, we are bound by it. For though even a series of decisions may amount to a moral certainty of truth and reason, it is not conclusive; and in contemplation of law, any judge is supposed to examine a principle when he sanctions it, and if the decision is contrary to his own reason, he has a right to depart from it, and it can only be considerations of expediency that can hinder it. For in the language of lord Chancellor Finch, in the case of the Duke of Norfolk, "I must be saved by my own faith, and not another's; and must not decree against my own conscience and reason." Every man is supposed to use his own reason when he judges; and to be assisted only by that of others, who have gone before him. The respect shewn to the sentiments of the jury by Lord Kenyon, appears from 1 T. R. 153, "I confess, says he, that the impression I received at the trial, was unfavourable to the defendant; but the jury thought differently, and I see no reason upon mature deliberation to differ from the conclusion they have drawn." Lord Mansfield, 1 Bur. 419, observes, "When solemn determinations acquiesced under had settled precise cases, and became a rule of property, they ought for the sake of property to be observed, as if they had originally made a part of the text of the statute." Yet in tracing his decisions it is impossible not to observe, that he is but little embarrassed with the old cases where they come in contact with his own reason. He has a felicity in getting over them and that is in most cases not by directly overruling, but by neglecting them though pressed in the arguments of counsel, and taking notice only of those that make for the opinion he has himself formed on principles of reason; or if he does take notice of them it is to give them the go-by with a "this is dis H tinguishable." In some instances indeed he does not hesitate to speak with contempt of a case, as 3 Bur, 1281, “the case in the exchequer cannot be rightly represented to us; for, as it is represented, one of the two resolutions, viz. that upon the statute of limitations, is wrong to the last degree, and obviously so to every body." In developing principles, the mind of this judge, ofte pours a stream of light which puts out cases, or renders them necessary as on the ejectment trial, 3 Bur. 1291, or in 1423, on a point of pleading; or respecting the will of a joint tenant; 1498, or in that of Curret v. Vaugh, as to the bearer of a bill of exchange maintaining an action against the drawer where he grants a new trial contrary to his own direction at nisi prius, misled as he alleges by cases; and though strongly struck at the time, that upon general principles the bearing of them was against law and justice. He did no always take up water at the stream's mouth, but went to the source; the "antiquos exquirere fontes," would be a good motto for a sergeant's ring, though I have not seen it mentioned as used. Another occurs to me from the poet Horace, which would be a good motto, and expresses a principle which governs too little, Sensus, moresque repugnant, It would be too much to say of the judiciary, raro sensus communis in illis; and yet mother wit seems to me to shew itself less than might be expected in a science which contains the rules of right and wrong in the transactions of men. In 1 Bos. & P. N. S. 69, Sir James Mansfield says, "I do not know how to distinguish this from the case before decided in this court." It is of greater consequence that the law, should be as uniform as possible than that the equitable claims of an individual should be attended to. The idea that the equity of a particular case must be lost, for the sake of a general rule, is not always satisfactory, or that a general rule ought not to be changed though it is found to work iniquity; notwithstanding there is the same power in the court to change it, that there was originally to make it. For it is said 1 Bos. and Pul. 207, N. S. by the same judge, that "certainly of late years the courts have been inclined to relax the strictness of the old rules respecting proof, which were thought to be attended with great expense and difficulty." In the case of Wright v. Child, this chief justice discovers an independence of mind which might seem to militate with the doctrine of technical construction of devises in opposition to the popular meaning of the words; and though he concedes to the weight of authority against him, yet acknowledges it to be, at least in that case, against his own judgment. "This case says he, has been long depending, not so much on account of any doubts entertained by my brothers, as by myself; the rest of the court being of opinion, that the defendant is entitled to judgment. And therefore I now defer to the opinion of my brothers and of the judges of the court of king's bench, yet, I must declare that if it had fallen to my lot only, to decide the case, I should have decided it in favour of the lessor of the plaintiff. I am bound to say that this is still my opinion. In all the cases where questions of this sort have arisen, it has been next to impossible, out of a court of justice to doubt of the testator's intention." In 3 Bos. and Pull. 124, the case of Atkin v. Berwick is relied upon in the argument, and of which lord Alvanly observes; "It is singular that this case should have been often cited with disapprobation, and never overturned; but that different judges should have supposed it proceeded upon different grounds." Brook justice, speaks of it as "at different times confirmed," and Chambre says "perhaps if a case precisely similar to that were now to arise, it would not receive the same decision. It might be difficult now to support the case, as it was then decided, and it is remarkable that where this case has been mentioned upon various occasions, it has been constantly found fault with, and yet the judges have never particularly stated the parts with which It they quarreled, but have always confirmed the case upon the whole, and held on the decision to have been right." may be seen from this, the disposition of men's minds, to be enslaved to what is gone before: In the gross, to feel a thing wrong; but to think it a trespass upon the sacredness of precedent, to undertake the examination, and to declare it 80. 3 Bos. and Pul. 245, Justice Heath observes that "with respect to the case cited from Barnes, (Read, v. Garnet,) that has been overruled by subsequent authorities and practice; indeed many of the cases reported in that book are not law;" and Brooke justice, "the reason upon which the decision in Read v. Garnet is founded, proves it to be a case of no authority," and in an excellent note by the reporter in the case of Wennal v. Adney, the words are that the opinion of justice Buller in the last case (Hawkes v. Saunders) was to the same effect, and the same law was again laid down by Lord Mansfield in Freeman v. Trenton. Of the two former cases, it may be observed that the particular point decided in them has been overruled by the subsequent case of Deeks v. Strut, 5 T. R. 690. This shews that the judges will test a decision by the reason of it, and overrule what has been ruled before. Referring to cases, 3 Bos. and Pul. Chambre, J. says; "the language of those cases does not appear to me very correct," and again, "before we get rid of these authorities, we must be furnished with some principle of law, upon which we may decide contrary to them." This implies the exercise of his own reason in this judge, and the right to develope principle, independent of what are called authorities. That a decision not founded in reason but contrary to justice, will take place, we have an instance in the case of goods coming into the hands of a bankrupt after his bankruptcy. The assigns shall take them and yet e creditor shall not be allowed to prove the debt under the commission. The judges of the court of common pleas meeting with this principle, 3 Bos. and Pul. in the decision express, themselves thus ; the chief J. (Alvanly)" in looking into the |