PUTTING NEW WINE INTO OLD BOTTLES.
By Seymour D. Thompson.
Nothing strikes the intelligent layman with more astonishment than the way in which lawyers reason when they are called upon to decide a new question. They do not reason at all; but they begin to hunt back through the old musty books to find some analogy on which to decide it. They go back to year-book times, at least to the times of Coke and Bacon, to find if some judge has not decided some similar question, thereby making a rule for us to follow in the full blaze of the nineteenth century. If these lawyers would read history instead of law, it would perhaps make this habit less frequent.
England in the time of Coke and Bacon had probably less than three million inhabitants. Its roads were nearly impassable during most of the year, so that intercommunication was extremely difficult. The city next in size to London was Bristol, and London had more than twenty times the population of Bristol. Carriages mired in the mud in the principal streets of London. Pedestrians jostled each other and fought for the wall, so that to "give the wall" is still a figurative expression in our language. Where ducal palaces now stand, there were then open squares covered with ashes, dumpings of all kinds, offal thrown out from kitchens, dead dogs, dead cats, and the like. Even the nobility ate with their fingers, as the Turks do yet. Forks were first introduced from Italy in the reign of Queen Elizabeth. The island was in a state of constant political and social turmoil. The highways in the immediate vicinity of London were unsafe by reason of highwaymen. The northern border swarmed with bandits scarcely more human than our Apache Indians. The indifference to human life was something that we can scarcely understand now. The brutality of the judges absolutely justified the expression of Shakspeare, "Your hungry judge will hang the guiltless rather than eat his mutton cold." Torture was still practised; and the last prisoner was put to torture in the Tower of London in thevyear 1640, the year the celebrated Long Parliament met. Prisoners were still tortured in Scotland at a later day; and the Duke of York, when governing that portion of the island during the reign of his brother Charles the Second, was accustomed to gratify his ferocious and detestable nature by having prisoners tortured in his presence. Old women were tried on the charge of being witches and found guilty by the verdicts of juries and put to death, even in a court presided over by a judge as enlightened and humane as Sir Matthew Hale. A prisoner was not allowed counsel, because no barrister was allowed to speak against the King. Trial by battel was customary, on the fantastic theory that God would not suffer the wrong to prevail; and it has been but seventy-one years since this relic of barbarism was abolished. Blood flowed for political offences. Atrocious and cruel penalties were annexed to crimes of a minor character. The stealing of a chicken was a capital felony.
In fact, our ancestors of those days were barbarians, not as far advanced as the Bulgarians of our own time. When, therefore, we have a new question of law to study, why should we go back and try to find what the opinion of Lord Coke, whose infamous prosecution of Sir Walter Raleigh can never be forgotten, was on the question? Why should we try to find what Sir Francis Bacon, who bought and sold justice, thought about it? Why, in short, should we not stop rummaging the old books and do a little thinking for ourselves? Our ancestors in their day did their parts as well as they could, with the light they had and amid such surroundings as they had. But, as compared with us, they were barbarians compared with the civilized man. In intellectual stature they were children compared with the moderns.
