THE AMERICAN JURIST.

No. I.

JANUARY, 1829.

ART. I.-An Address delivered before the Members of the Suffolk Bar, at their anniversary, on the fourth of September, 1821, at Boston. By JOSEPH STORY.

GENTLEMEN,-In comparing the present state of jurisprudence with that of former times, we have much reason for congratulation. In governments purely despotic the laws rarely undergo any considerable changes through a long series of ages. The fundamental institutions, (for such there must be in all civilized societies), whether modelled at first by accident or by design, by caprice or by wisdom, assume a settled course, which is broken in upon only by positive edicts of the sovereign, suited to some temporary exigency. These edicts rarely touch any general regulation of the state, and still more rarely attempt any general melioration of the laws. For the most part they affect only to express the arbitrary will of the monarch, stimulated by some pressing private interest, or gratifying some temporary passion, or some fleeting state policy. There is in such governments what may be called a desolating calm, an universal indisposition to changes, and a fearfulness of reform on all sides; on the part of the people, lest it should generate some new oppression, and on the part of the ruler, lest it should introduce some jealousy or check of his arbitrary power. In such countries the Law can scarcely be said to have existence as a science. It slumbers on in a heavy and drowsy sleep, diseased and palsied. It breathes only at the beck of the sovereign. It assumes no general rules, by which

rights or actions are to be governed. Causes are decided summarily, and more with reference to the condition and character of the parties, than with reference to principles; and judges are ministers of state to execute the policy of the cabinet, rather than jurists to interpret rational doctrines.

Under such circumstances the lapse of centuries scarcely disturbs the repose of the laws, and men find themselves standing in the same crippled posture, which was forced upon their ancestors, long after their sepulchres have mouldered into dust, and the names of the oppressor and the oppressed are sunk into doubtful traditions. The laws of the Medes and Persians were proverbially immutable. The institutions of China have undergone no sensible change since the discovery and doubling of the Cape of Good Hope; and the pyramids of Egypt, lost as their origin is in remote antiquity, are not perhaps of a higher age, than some of its customary laws and institutions. And it may be affirmed of some of the eastern nations, that through all the revolutions of their dynasties it is difficult to point out any fundamental changes in the powers of the government, the rights of the subject, or the laws, that regulate the succession to property, since the Christian era.

In free governments, and in those where the popular interests have obtained some representation or power, however limited, the case has been far otherwise. We can here trace a regular progress from age to age in their laws, a gradual adaptation of them to the increasing wants and employments of society, and a substantial improvement corresponding with their advancement in the refinements and elegancies of life. In the heroic and barbarous ages, the laws are few and simple, administered by the prince in person, assisted by his compeers and council. But as civilization advances, the judicial powers are gradually separated from the executive and legislative authorities, and transferred to men, whose sole duty it is to administer justice and correct abuses. The punishment of crimes, at first arbitrary, is gradually moulded in a system, and moderated in its severity; and property, which is at first held at the mere pleasure of the chief, acquires a permanency in its tenure, and soon becomes transmissible to the descendants of those, whose enterprise or good fortune has accumulated it. Whoever examines the history of Grecian, or Roman, or Gothic, or Feudal jurisprudence, will perceive in the strong lines, which may every where be traced, the truth of these remarks. And

it is matter of curious reflection, that while the laws and customs of the East seem in a great measure to have been stationary since the Christian era, those of Europe have undergone the most extraordinary revolutions; attaining at one period great refinement and equity, then sinking from that elevation into deep obscurity and barbarism under the northern invaders, and rising again from the ruins of ancient grandeur to assume a new perfection and beauty, which first softened the features, and then extinguished the spirit of the feudal system.

It is not however upon topics of this sort, suggested by a broad and general survey of the past, however interesting to the philosophical inquirer, that I propose to dwell at this time. My purpose rather is, to offer some considerations touching the past and present state of the common law, and to suggest some hints as to its future prospects in our own country, and the sources from which any probable improvements must be derived. In doing this, I shall attempt nothing more than a few plain sketches, contenting. myself with the hope of being useful, and leaving to others of higher talents and attainments, the more ambitious path of eloquence and learning.

The history of the common law may be divided into three great epochs; the first extending from the reign of William the Conqueror to the Reformation; the second from the reign of Elizabeth to the Revolution, which placed the house of Brunswick on the throne; and the third including the period, which has since elapsed, down to our own time.

The first of these epochs embraces the origin and complete establishment of the feudal system, with all its curious burthens and appendages; its primer seizins, its aids, its reliefs, its escheats, its wardships, its fines upon marriages and alienations, and its chivalrous and socage services. Connected with these were the distinct establishment of tribunals of justice, administered first by Judges in Eyre, and afterwards by Courts at Westminster; the introduction of assizes and writs of entry, and the perfecting of all those forms of remedies, by which rights are enforced and wrongs redressed. Some of the most venerable sages of the law belong to this period; the methodical and almost classical Bracton; the neat and perspicuous Glanville; the exact and unknown author of Fleta; the criminal treatise of Britton; the ponderous collections of Statham, Fitzherbert and Brooke; and above all the venerable Year Books themselves, the grand depositories of the ancient com

mon law, whence the Littletons and the Cokes, the Hobarts and the Hales of later times drew their precious and almost inexhaustible learning. Of these blacklettered volumes few in our days can boast the mastery. Even in England they are suffered to repose on dusty and neglected shelves, rarely disturbed, except when some nice question upon an appeal of death, upon the nature of seizin, or upon proceedings in writs of right, calls them up, like the spirits of a departed age, to bear their testimony in the strife. This too was the age of scholastic refinements, and metaphysical subtleties and potent quibbles and mysterious conceits; when special pleading pored over its midnight lamp, and conjured up its phantoms to perplex, to bewilder, and sometimes to betray. This too was the age of strained and quaint argumentation, when the discussions of the bar were perilously acute and cunning. And yet, though much of the law of these times is grown obsolete, and the task of attempting a general revival is hopeless, it cannot be denied, that it abounds with treasures of knowledge. It affords the only sure foundations in many cases, on which to build a solid fabric of argument; and no one ever explored its depths, rough and difficult as they are, without bringing back instruction fully proportioned to his labor.

The commencement of the second period is rendered remarkable by the enactment of two statutes, which have probably conduced more than any others to change the condition of real property, and at the same time that they have facilitated its application to the business and the wants of real life, have in no small degree rendered its titles intricate. I allude to the great statutes of Wills and of Uses in the reign of Henry VIII. The former of them has crowded our books of reports with cases more numerous and more difficult in construction than any other single branch of the law. The latter, followed up by the statute of Elizabeth of Charitable Uses, laid the foundation of that broad and comprehensive judicature, in which equity administers through its searching interrogatories, addressed to the consciences of men, the most beneficent and wholesome principles of justice. The whole modern structure of Trusts, infinitely diversified as it is, by marriage settlements, terms to raise portions or to pay debts, contingent and springing appointments, resulting uses and implied trusts,-grew out of this statute, and the constructions put upon it. And it is scarcely figurative language to assert, that the scintilla juris of Chud