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adopted. The great point is, that there should be a rule by which conduct may be regulated. Thus, whether in mercantile transactions notice of a default by a principal shall be given to an endorser, or a guarantor, and when and how such notice shall be given, are not so important in themselves, as it is that there should be some rule to which merchants may adapt themselves and their transactions. Statutes cannot, or at least do not, prescribe the rules in a large majority of cases. If then they are not drawn from the decisions of courts, they will not exist, and men will be wholly at a loss for a guide in the most important transactions of business. Hence the deference paid to legal decisions. But this is not implicit, as the author supposes. The course of reasoning by which the courts have come to their conclusions, is often assailed by the advocate and shown lo be fallacious, and the instances are not unfrequent of courts disregarding prior decisions and overruling them when not fairly deducible from sound reason.
Again, the principles of the common law are flexible, and adapt themselves to changes in society, and a well-known maxim in our system, that when the reason of the law ceases, the law itself ceases, has overthrown many an antiquated rule. Within these limits, it is conceived there is range enough for the exercise of all the reason of the advocate and the judge, without unsettling everything and depriving the conduct of human affairs of all guidance from human authority;—and the talents of our lawyers and courts find sufficient exercise in applying the principles of one case to the facts of another.—American Editor.]
The station which lawyers occupy in England and America, exercises no less an influence upon their habits and their opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and of authority upon the members of the legal profession. In English society lawyers do not occupy the first rank, but they are contented with the station assigned to them; they constitute, as it were, the younger branch of the English aristocracy, and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the tastes and the ideas of the aristocratic circles in which they move, with the aristocratic interests of their profession.
And indeed the lawyer-like character which I am endeavouring to depict, is most distinctly to be met with in England: there laws are esteemed not so much because they are good, as because they are old; and if it be necessary to modify them in any respect, or to adapt them to the changes which time operates in society, recourse is had to the most inconceivable contrivances in order to uphold the traditionary fabric, and to maintain that nothing has been done which does not square with the intentions, and complete the
