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features I have elsewhere endeavoured to describe (a): it contains within itself a principle of growth; and, like our language, is continually undergoing a progressive development and change.
The foregoing considerations, while they evince
(a) “ The Common Law is not so much the contrivance or result of any human wisdom, acting upon an enlarged experience, as the production of time, the growth of circumstances, the offspring of the various necessities which the manners, the religion, and the commerce of the people have at different times imposed. Antecedently to all law, (at least all positive law strictly so called), men are governed by certain usages or customs, not created, but spontaneously springing up; and which bind the people, not by virtue of any express sanction of the supreme power, but by the force and authority of public opinion, which is to them a rule of positive morality. But as society advances, as legal relations increase and multiply, and men's minds are opened and liberalized by ingenuous science, those usages or customs, or, as Lord Bacon calls them, laws written in living tables,' which grew up with the growth of society, are gradually transmuted, by means of judicial decisions, into legal rules, clothed with all the authority of positive law. By the exercise of this important and constitutional function of the judges, acting as ministers of the state or supreme power, much of what is commonly called jus non scriptum (an expression borrowed from the Roman jurists) has, in fact, become written law, embodied and expressed in the records of our tribunals, and published in the reports. Originally, however, judicial decisions rested solely on the oral testimony of the suitors or witan, who bore evidence to the judgments which they or their predecessors had pronounced: they remembered and recorded 'them. In progress of time, and as the use of letters became more common, that which had formerly been confided only to living testimony was, for greater certainty, committed to writing, and thus perpetuated as a record of court.' To give to adjudged cases greater publicity, they were at length put forth in certain periodical publications called Reports,' of which a regular series, in print, from the reign of Edward the Third inclusive, is still extant."-Vol. I. Introduction, sect. 2, art. vii.
the importance of the study in question, will serve to show how utterly irrelevant is the comparison which has been often made between the English Forms of Conveyancing and those of France, to the prejudice, it is supposed, of the former. For this is not an absolute, but a relative question; and, consequently, can only be determined by reference to the system to which each Form exclusively belongs. To find fault with the English Forms for wanting the brevity of the French, is as if any one should censure our countrywomen for wearing long shoes while the Chinese wear short ones,-forgetting that shoes must be fitted to the feet.
In the Forms of Conveyancing, perspicuity is of such paramount importance, that all elliptical expressions, and any thing like a suggestive style, such as is naturally adopted in conversation, ought to be scrupulously shunned. And hence Horne Tooke has justly remarked, in his Diversions of Purley, that “legal instruments have always been, and always must be, remarkably more tedious and prolix than any other writings, in which the same clearness and precision are not equally important. For abbreviations open a door for doubt; and, by the use of them, what we gain in time, we lose in precision and certainty.” How far the existing Forms of Conveyancing are capable of abbreviation without losing part of their substance, is a very important question, but one which cannot be discussed within the limits of a preface.
I have only to add my best acknowledgments to
those friends who have communicated to me their MS. Collections of Forms, from which I have derived considerable assistance; assuring them, whatever may be the reception of the work, I shall ever retain a grateful sense of their kindness.
4, Lincoln's Inn, Old Square,
Trinity Vacation, 1837.
CON TEN T S.