Changes in the Law.-Law Lectures at the Incorporated Law Society. 53 continue to hold the exclusive privilege of note made payable at or within three months banking given by 39 & 40 G. 3, as regu-after the date thereof, or not having more than lated by 7 G. 4, "but no other or further three months to run, shall, by reason of any exclusive privilege of banking ;" and doubts interest taken thereon or secured thereby, or any agreement to pay or receive or allow intehaving arisen as to the construction of the rest in discounting, negociating, or transferacts and the extent of the privilege, it is ring the same be void, nor shall the liability of declared,any party to any bill of exchange or promis sory note be affected by reason of any statute "That any body politic or corporate, or soor law in force for the prevention of usury, ciety, or company, or partnership, although nor shall any person or persons drawing, acconsisting of more than six persons, may carry on the trade or business of banking in London, cepting, indorsing, or signing any such bill or or within sixty-five miles thereof, provided note, or lending or advancing any money, or that such body politic or corporate, or society, taking more than the present rate of legal interest in Great Britain and Ireland respectively or company, or partnership do not borrow, for the loan of money on any such bill or note, owe, or take up in England any sum or sums of money on their bills or notes payable on de- be subject to any penalties under any statute mand, or at any less time than six months or law relating to usury, or any other penalty from the borrowing thereof, during the conti-or forfeiture; any thing in any law or statute nuance of the privileges granted by this act to relating to usury in any part of the united the said governor and company of the Bank of kingdom to the contrary notwithstanding." (§ 7.) England." (§3.) It is then provided, that all notes of the Bank of England, payable on demand, which shall be issued out of London, shall be payable at the place where issued. (§ 4.) The exclusive privileges of the Bank are to end upon one year's notice given at the end of ten years from August 1834, and any vote or resolution of the House of Commons, signified by the speaker in writing, shall be deemed sufficient notice. ($5.) The following is the legal tender clause: : "That from and after the first day of August one thousand eight hundred and thirty-four, unless and until parliament shall otherwise direct, a tender of a note or notes of the go. vernor and company of the Bank of England, expressed to be payable to bearer on demand, shall be a legal tender, to the amount expressed in such note or notes, and shall be taken to be valid as a tender to such amount for all sums above five pounds, on all occasions on which any An account of bullion and securities, and of notes in circulation, is to be sent weekly to the Chancellor of the Exchequer. (§ 8.) The public is to pay the Bank one-fourth part of the debt of £14,686,800. (§ 9.) The capital stock of the Bank may be reduced (§ 10); and the Governor, DeputyGovernor, or Directors, are not to be disqualified by the reduction of their share of the capital stock (§ 11); nor are the proprietors to be disqualified by such reduction. (§ 12.) On the other hand, the Bank is to deduct the annual sum of £120,000 from the sum allowed for management of the national debt. (§ 13.) The provisions of the 39 & 40 G. 3, are to remain in force, except as altered by this act. (§ 14.) tender of money may be legally made, so long LAW LECTURES AT THE INCOR as the Bank of England shall continue to pay on demand their said notes in legal coin: provided always, that no such note or notes shall be deemed a legal tender of payment by the governor and company of the Bank of England, PORATED LAW SOCIETY. LECTURE TO THE COMMON LAW COURSE. 8th November, 1833. or any branch bank of the said governor and MR. THEOBALD'S INTRODUCTORY The modified alteration of the usury laws is thus provided: - “That no bill of exchange or promissory THE Lecturer commenced with an apology for the topics he should select-chiefly the result of his recollections, reflections, and reasonings on a few general subjects connected with the Common Law-alleging the very brief space of time allowed for preparation, as an excuse for not making the lecture more comprehensive. He then proceeded as follows :-- D 3 54 54 Law Lectures at the Incorporated Law Society. To teach within these walls that great portion | common law at all in the early period after the of law called the Common Law is the object of conquest; but the opinion rests evidently on a this division of the lectures. The subject is one particular definition, and though according to which demands the most minute attention, and that definition the opinion is logically correct, of whose importance it is impossible to form yet I deny it to be true in fact; for the definian exaggerated idea. Of the magnitude of the tion is defective in excluding a portion of that, interests to which it relates many who hear me no matter what its origin, which passed as law are aware from personal experience; it affects among the people. Am I told that it is absurd the rights of persons of every degree, and involves to talk of law without writing, without instiquestions infinitely various, and often of the tution? I reply, that as acquisition, or the act of utmost nicety. To place before you the mighty acquiring, precedes enjoyment or possession, mass in something like the parts and propor- so admitted rights and admitted liberties may tions of a science, to give it at once the attrac- precede dispute, precede decision, and consetions of an agreeable as well as useful study, to quently precede their regular institution. make it answer, as it were, to the image of a Before the conquest, at the conquest, after the tree of knowledge, shewing its various fruit of conquest, were not our Saxon forefathers marrights and obligations, of powers and duties, ried and given in marriage? had they not the its ramification over all the transactions and ties of kindred and family; of master and serbusiness of society, and the root which it has vant? had they not possessions? was the fruit in the foundations of society;-such will be gathered to-day all consumed to-day? was the general object of your common law lec- there no barter, no property? and if there were all these things, would not corresponding wrongs occur? or occurring, would they be viewed with indifference merely because the marriage was regulated by no marriage act, the contract by no statute of fraud, the right of possession evidenced by none of the modern legal formalities? turer. At an early period will be brought before you the subject of the constitution, powers, and jurisdiction of the Courts of Common Law, and the first course will be chiefly on the law of actions. The existence of any law, or system of law, implies that authority and means also exist for its enforcement. Law itself, the law which confers rights and imposes obligations, sometimes called the law substantive, is on the lips of the sovereign legislature of only the force of a precept, and it is the business of the executive department of the government to give it life and activity. This duty has been delegated by the crown, in which the whole executive power of the state centres, to Courts of Justice immediately. Whether Alfred the Great composed a code or book of laws for the Saxons, or not, and whether there was a republication or revival of this code by Edward the Confessor or not, the common law which prevailed after the conquest was not the law of the Normans, was not introduced by the Normans, nor was it subsidiary to their views; but was domestic, the growth of the soil, sprung from usages and traditions which had been handed down from father to son, was still kept alive amidst great vicissitudes by the affections of tribe and family, a common law in short of the habits, usages, and customs of the common people, made law by the recognition of the courts without the sanction of the Conqueror, and for a long time existing as law only by the silent acquiescence of parliament. But there were all these things, for their names, the best evidence of their existence, have come down to us; there would be a corresponding class of wrongs, and law, the Common Law, pronounced in its Courts, gave redress, and built up by degrees a civil polity, by thus adding its sanction to anterior voluntary custom and usage. I have often thought, and the more I reflect the stronger is my impression, that there is a great deal of mistake, a great deal of unfairness, a want of comprehensiveness of view, in the opprobrium intended to be cast upon the Common Law, in the application to it of the epithet of judge-made. When differences arise, and the parties have not the spirit of concession, if Courts there be, such differences are necessarily brought before them. Before the Common Law Courts they are brought by means of a writ, which is the act of the King at once authorizing and commanding the Courts to put an end to the dispute by an adjudication. Now, if parliament, the legitimate source of law, in an age when the use of parliaments is settled, has provided no positive enactment, what, in such a predicament, is the duty of the judge, if it occurs in an age when the use of parliaments is infrequent, ill-defined, On the question, whether these customs were and unsettled? Is he, in spite of the royal mangeneral customs-that is, whether they pre-date, to say, I find no statute on the subject, I vailed every where among the same people, or were merely local, antiquaries are of different opinions; but, in either case, the recognition of them was wise, was beneficent on the part of the Courts of Justice. It was the next best system to a government by laws made by the representatives of the people, and perhaps in the absence of a properly representative body, it was the only mode of obtaining laws adapted to a rude and simple people. Some persons have denied the existence of any am therefore without jurisdiction, and dismiss the complainant? Such a course would be to extinguish the elements of civilization, and to make a perpetual night of rudeness and barbarism. If the defence of the Common Law in the earlier period of our legal history is thus easy, it is no less just when extended to the present period. But the grounds of defence are somewhat different. In the present day, there can hardly arise any custom of ancient date affect 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. 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 altogether 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 legislation, 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 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 supplied, in the best possible manner, but in a 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 com plaint 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 parlia ment 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. most respects present less discrepancy than the 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, prompted 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. 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, there, tofore unrecorded and unwritten. The evil in this case is precisely the same as the multipliAlthough great inconveniences might a pri- cation of articles in a code or written system; ori have been expected from an unwritten sys- and therefore, even without the light of expetem of law, it is interesting, and not without rience derived from the administration of the practical use, to observe how these inconve- continental codes, we might upon general prinniences have been lessened and compensated ciples assert, that slighter far than the English by the peculiar circumstances of its adminis- friends of codification imagine, is the differtration, and particularly by the situation and ence between case law and code law, or law number of the Common Law judicatories. In written. In case law, in the common law in one place, I may say in the metropolis, the the present day, we have in the concrete, what centre of our civilization, the focal point where in the code, if the code is correct, is merely the national intelligence is strongest and in the form of a naked proposition. If it is said brightest, where cominerce too carries on her our cases and reports will still remain as a most important transactions; There, are sta- commentary to guide the application of the tioned the three Courts, in which all unwritten code: I shall reply in the words of St. GerCommon Law has its rise, From this conti- man ;—“I think verily more doubt and quesguity, have flowed the most important conse-tions would arise upon the statute, (that is, quences; 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. 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 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 ob-render it more certain ? tained, 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 opportunity. ED.] evidence, and must occur equally, even if the DOUBTS ON THE LIMITATION OF law were written; and hence "the glorious uncertainty of the law," as far as the phrase is meant to impute an extraordinary degree of uncertainty to the Common Law," is a phrase either of prejudice or ignorance. If, on the ather hand, the case in dispute falls under a predicament on which there has not been any direct decision, then the uncertainty is only that which belongs to all analogical reasoning, If it is said, that time accumulates cases, and so buries the law in the heap, that at last it is inaccessible and incomprehensible; I reply, that the concentration of the har at one point, a necessary consequence of the centrality of the Courts, reduces almost to nothing this objection, and that it is rather a theoretical than a practical objection: if clients could bring the facts to a state of certainty, there is not one case out of one hundred in which the law, that is, what the Courts would decide upon the facts, is not also predicable to a certainty. But waive this reply, and let us examine the objection: It is a real fallacy under an appa 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, 1855, 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 Edinburgh Gazettes respectively, then from and after such day or time as shall be fixed and within the space of one culendur month next appointed by such advertisement, not being 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 stamping of which any such new die or dies deeds and instruments for the marking or shall have been provided, and which after the day so fixed and appointed as aforesaid shall be, ingrossed, written, or printed upon velluin, 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 aforedies so 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 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 may 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 whatsoeyer, 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 the United Kingdom, it shall be lawful for the signed by any party thereto at any place out of 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 ment of any penalty, provided such deed or dies, to the same amount of duty, without payinstrument 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 |