compulsory regulations which, during the late war, were prescribed by the legislature, and enforced by the government of this country, as a measure of public policy. By two several statutes, passed in 1797 and 1803, 2 it was enacted that it should not be lawful for any ship belonging to subjects of his Majesty (with certain exceptions) to depart from any port or place whatever, unless under such convoy as might be appointed for that purpose; and the master was required under very severe pecuniary penalties to use his utmost endeavours to continue with the convoy during the whole voyage or such part thereof as the convoy should be directed to accompany the ship, and not to separate therefrom without the leave of the commander. Again, it was declared that in case any ship should depart without convoy contrary to the act, or wilfully separate therefrom, all insurances on the ship, cargo or freight, belonging to the master or to any other person who should have directed or been privy to such departure or separation, should be null and void; and, further, the officers of customs were required not to allow any ship which ought to sail with convoy, to clear outwards from any place in the United Kingdom to foreign parts, until the master should have given bond with one surety, with condition that the ship should not depart without convoy, nor afterwards desert or wilfully separate therefrom. The exceptions were—of vessels not required to be registered—or licensed by the Admiralty-to sail without convoy-or bound from one part of the United Kingdom to another-or belonging to the East India or Hudson Bay Companies--or employed in the Newfoundland fishery: nor did the provisions extend to any ship proceeding with due diligence to join convoy from the port of clearance to the rendezvous, the bond of the master having been previously given; or sailing from a foreign port where no convoy was appointed, and no person authorized to appoint convoys or to grant licences of dispensation.

Upon this statute it was decided that the sailing with convoy thereby required must be a sailing with convoy for the whole voyage, or for so long a part thereof as convoy might be ap

1 Other countries, on the same view of policy, have adopted similar regulations. See Valin, tom. i. p. 691, and the ordinance of Hamburgh, 1731.

2 38 Geo. III. c. 76, and 43 Geo. III. c. 57. These acts severally expired at the conclusion of the war in 1802 and 1814.

pointed to go,1-that it was a breach of the act, or no exemption from its penalties, to sail from port to port, unless the ship were so bound 2-that an attempt to overtake the convoy was not a sufficient compliance3-that the master ought to apply for and receive sailing instructions from the commander of the convoy, otherwise, if he separated, it would be deemed to be by his own fault-that if a licence had been obtained, the terms and conditions of the licence must be strictly and literally observed 5-but that on the other hand, if the master had done all which could reasonably be required for compliance with the act, but by accident and without fault on his part, the convoy had sailed without him, or quitted him on the voyage, the provisions of this penal statute, which were not to be too rigorously interpreted, must be regarded as having been substantially satisfied.

L.

6

ART. V.-LIMITATIONS TO NEXT OF KIN.

It has been said that, when judges over-rule an authority, they do not create a new state of the law upon the point in question, but that, being the living depositaries of the law, and the true interpreters of it for the time being, they merely declare what the law is and always was. This subtlety, though of admirable use for the purpose of showing that the law cannot be misinterpreted, and that, judges being the fountains of legal truth, the living stream of law must always be pure, affords little practical consolation to a suitor who finds that he loses under one declaration of the law what he gained under another. In fact there is no power by which the rights and interests of the community are more seriously affected than the power which judges possess of undoing the work of their predecessors, and as there is nothing in the nature of a fixed rule or period of limitation to control it, there is no power of which the exercise demands greater deliberation and caution. It is

1 Cohen v. Hinckley, 1 Taunt. 249.

Ibid. per Heath, J.; and see the several cases on the warranty which confirm that opinion, 1 Bos. & Pul. 5; 2 Bos. & Pul. 164.

• Hinckley v. Walton, 3 Taunt. 130; Ingham v. Agnew, 15 East, 517. See also 4 Taunt. 178, and 6 Taunt. 544.

6 Laing v. Glover, 5 Taunt. 49.

7 Williams v. Shee, 3 Camp. 469.

true that there are many rules of law, and many decided cases, of which the authority, founded upon long acquiescence, is considered, in practice, too sacred to be shaken; but these have not always been respected, and, in the absence of any positive rule upon the subject, it must often depend upon the character of a particular judge, how far their ascendancy will be maintained. One judge, for instance, may be more inclined than another to give effect to the intentions of a testator, or less anxious to uphold the inflexibility of rules of law, and the rule in Shelley's case may be put in jeopardy. Another, for the like reason, may think that leaseholds ought to pass under a devise of lands, tenements, and hereditaments, and Rose v. Bartlett may be violated; while a third may deem it absurd to hold that a gift of an estate, subject to a mortgage, must be intended to be a gift of the estate exonerated from the mortgage, and Serle v. St. Eloy, which has been always disapproved and always followed, may be departed from. Certain it is that where a decision, applicable to a great number of particular cases, has been long acquiesced in, however doubtful or unsatisfactory the ground of it may originally have been, the sudden over-ruling of such an authority is productive of far greater inconvenience and mischief than any possible good that can arise from the substitution of a decision, founded, it may be, upon sounder principles of law. Where a decision, involving a principle of general application, has been undisturbed for twenty or thirty years, and made the foundation of a vast number of professional opinions, it is impossible to say how deeply it may have struck root into the social system; to what extent it may have influenced contracts, family arrangements, and the various transactions connected with the transfer and disposition of property, which constitute so large a portion of the business of human life. Under such circumstances the disturbing force of a counter-decision suddenly pronounced will necessarily be far greater than any beneficial effect that can be reasonably expected to result from the substituted decision. It is not with judges as with the legislature, which, at the same time that it alters the law, has the power of preventing the altered law, to some extent at least, from working a retrospective wrong. The over-ruling of decisions long acquiesced in has always an injurious, if not an

unjust operation upon the interests of those who have acted upon the faith of the decisions over-ruled. The mischief produced is certain and positive, while the benefit that may arise from the new decision is necessarily remote and uncertain, and not unfrequently, from the nature of the subject-matter adjudicated upon, absolutely null. In many cases, where the equities on both sides are equal, it is a matter of little importance whether property be awarded to A. or to B., and all that is necessary for the purposes of justice, and of public policy, is, that the rule which gives it to one or to the other should be fixed and well ascertained. Take, for example, the case of an ultimate disposition of property made by the author of an instrument to his next of kin, in the event of the failure of previous gifts to the particular objects of his bounty; a case which we select because it is the subject of a recent decision of the Lords Commissioners, upon which we are about to make a few observations. Supposing the question of intention to be excluded from consideration, it matters little whether the persons who are nearest in blood to the author of the instrument be held to be entitled under the words "next of kin," or whether those words be held to mean next of kin according to the statute of distributions.

But to whatever class of persons property so limited is to be given, it is of the greatest importance that the law upon the subject should be fixed; and if for the last fifty, and, for any thing that appears to the contrary, for the last hundred and fifty years, the law has given it to one class,—a decision which, after the lapse of so long a period, gives it to another, is so manifestly contrary to policy, that, unless supported by the strongest reasons, and called for by the most stringent judicial necessity, its soundness may well be doubted, and it may at any rate be fairly made the subject of free, but respectful

comment.

The decision we allude to was pronounced by the Lords Commissioners in the case of Elmsley v. Young;1 but before adverting more particularly to it, we shall take a short view of the effect of the cases bearing upon the subject.

In Carr v. Bedford, a case which occurred in 1677, seven

1 2 Mylne and Keen, 780.

22 Ch. Rep. 146.

years after the statute of distributions, where the testator gave the residue of his personal estate to and amongst his kindred according to their most need, the court held, that the act for better settling intestates' estates was the best rule that could be observed as to the limiting the extent of the word kindred, and decreed accordingly.

In Griffith v. Jones,1 which was decided in 1686, it is said, that of late it had been held, that if a man gave his personal estate among his kindred, the devise should be governed by the act of distribution. It is observable, that the third section of the statute of 22 and 23 Ch. II. c. 10, directs distribution of the clear residue of the intestate's estate to be made amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person, in equal degree, or legally representing their stocks, "pro suo cuique jure." Here the words "next of kindred" are clearly, according to the grammatical construction of the passage, applied as well to the representatives of those who are nearest in blood to the intestate, as to the nearest in blood themselves. And in the sixth section of the supplemental statute, 1 Ja. II. c. 17, the term "next of kin" is used in a sense which applies both to the nearest in blood to the intestate, and to their representatives.

In Roach v. Hammond2 (1715) a bequest for the use of the testator's "relations" was held to be distributable according to the statute of distributions; and this decision has been followed in a great number of similar cases, where the word "relations” has been either used alone, or coupled with other words, which do not increase the certainty of the intended objects of the testator's bounty. But wherever in such cases the testator directed a particular mode of distribution, the Court, having ascertained the objects by reference to the statute, did not go on to decree distribution to be made according to the shares and proportions directed by the statute, but gave effect to the expressed intention of the testator in that respect.

Thus in Thomas v. Hole,3 where the testator gave 500l. to

11 Freem. 96, and 2 Ch. Rep. 394. 3 Forr. 251.

* Prec. in Ch. 401.