In those times that judicial policy was not to be
condemned. We find, too, that, probably from the same cause, most of
their doctrine leaned towards the restriction; and the old lawyers being
bred, according to the then philosophy of the schools, in habits of
great subtlety and refinement of distinction, and having once taken that
bent, very great acuteness of mind was displayed in maintaining every
rule, every maxim, every presumption of law creation, and every fiction
of law, with a punctilious exactness: and this seems to have been the
course which laws have taken in every nation.[50] It was probably from
this rigor, and from a sense of its pressure, that, at an early period
of our law, far more causes of criminal jurisdiction were carried into
the House of Lords and the Council Board, where laymen were judges, than
can or ought to be at present.
As the business of courts of equity became more enlarged and more
methodical,--as magistrates, for a long series of years, presided in the
Court of Chancery, who were not bred to the Common Law,--as commerce,
with its advantages and its necessities, opened a communication more
largely with other countries,--as the Law of Nature and Nations (always
a part of the law of England) came to be cultivated,--as an increasing
empire, as new views and new combinations of things were opened,--this
antique rigor and overdone severity gave way to the accommodation of
human concerns, for which rules were made, and not human concerns to
bend to them.
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