National Republican., 1885-06-13

birth and by aspiration, he had nevertheless
been cosmopolitan in conspiracy; for he had
Cnnsnired against France when MI exile in
Europe and against Europe when emperor Of
France. Yet, consplrator as II was his nature
to he, this was always under the shadow OF n
mysticism which made France at once his
homo and his hope, aud dominant no doubt
under the iinpassive brow of tho dying man
was the belief that to him or his sou tho
French scepter. would return. But in South
Africa, not long aiterward, died that son,
lighting in British battle, never having re.
visited France. II saw dimly through tears"
says MI FORBES, the very last OF him, AZ he
lay there dead on the blood.s,alned sward by
the ltyotyski river with calm, proud smile
on his face, and his body pierced by countless
asscgai stubs.' But though exiled from
France, dying away from France IN British ser
vice, the son as well as the father looked, dy.
ing and living, 10 France a. n home, and took,
by the law Of nature, theirpersonql status from
France. so 1t was wish the Jacobitc
refugees from England AFTER the reyolu-
ton Of 1855, 80 II was with tho refugees
from our own country amer the revolution of
l116. nnd after the late civil war. No matter
how despairingly they might have looked for
ward to return TO the land that had been
their domicile, their dying glancos sealed II as
their own. Virgil thus speaks OF this
"CUlumque
Adspioit, ct dulccs moriens rominiscitur
"with his last looks to heaven
Were mingled memories Of his sweet Argos
home"
Hence the country to which their dying as
well as their living looks turned, no matter
how hopelessly, remained their domicile; its
flag overshadOwed their collins, cxlles though
they were; It's laws distributed their effects.
This, az to all sojournors whose domicile is in
another country is now tho universal rule, no
matter what may be tho object OF their 30.
journ, or how long It may endure The rule
springs from an instinct OF our common hu.
inanity by whose stress the soyorcigns of civil.
iynl lunuN "a phallaHNn "a. Au Of
home; aud when stranger n within their
gates, cover him on the cradle, A. tho mar.
Tiage ceremony aud on the dying bed, with
the mantel Of his home law.
have thus imporfcclly considered how that
IN municipal law, In Constitutional law, and
III International law, that Which IL truly bon.
ehclal IN merely doclAfatury, and smanates
from the genius and conscience Of tho people
TO whom II relates Of the futility OF laws
which are not 10 dcolafutory We hnyo Illus.
tranons IN laws liking prices Of goods, whose
only cncct IL TO adapt the currency TO the
price; and In laws prohibiting uses and trusts
which can never, a. long As there arc daughters
TO protect or charities To ondOw, prevent n
new form Of hduUiary relationship coming In
to take tho place Of the old form which was
prescribed. As illustrating the instructive
aud organic way IN which community
throws on laws which have ceased to be
declarhtofy OF existing conditions and puts on
laws which are declaratoTy might call at.
tenlion 10 the fact that the English colo.
colonial seoluslon, had on them the
gsrb Of ieudalism and chiyalry; when
they emerged from this seclusion this gor.
gCOus but superannuatcd attire was dropped,
and they reappeared In the sober simplicity
suited TO the time and place. They went In
deeked with the statute quid cmptOres, with
the statutes Of Edward and Elizabeth proscrib.
ing charitable and superstitious usages, with
equity assigned u distinct supervisory power,
with primogeniture aud tenancy In tail aud
non-liability 0frca estate for debt aud with liy.
cry of seizin They stepped out of this era of Sc.
cluslon, as to the proceedings OF which we have
stepped out denudod of tho statutes qua
cmpiOrcs and those prescribing charitable and
supentitious usages-denuded, also, most Of
them, Of courts OF chancCry, and of prirnogeni-
ture, of tenancy in tail aud Of livery of seizin;
aud in their place clothed in system which
worked equity into common law, which re.
served no ienlty toa lord paramount, which dis.
tfibuted land as well az goods equally among
children; which subjected land to debt, and
which in place Of Livery of selzin established
recording ottices, Now, by whom was this
donoY Certainly not by either British parlia-
ment or by sovereign in council, for there is
no record OF such changes, and such changes
they would have abhorred. It WAS not done,
except In II very few instances, by colonial
Legislation. II was not done by the judges
since Judges do not not usually take points not
pressed on them by counsel and the colonial
judges, appointed by crown or proprietor
would not have been likely on their own mo-
tion to revolutonlze the system they were sent
to support. hut this work of stripping off the
old law, which had ceased to be applica-
BILE, and putting on the new law, which the
conscience and conditions OF the people re-
quired, was done IN the main by the lawyers
The lawyers who led the colonial bar, and
who did this work, We're, as leaders OF tho bar
usually are, men OF integrity, good sense, aud
intelligence. Even when appearing before
royal or proprietary judges, lawyers of this
class were not inclined to take points which
contiicted with the popular sense of what
was right and necessary. II seemed Us
II counsel, when presenting cases, tacitly
assumed that the principles of the old law,
which were Incompatible with the then condi.
tlon of things, should be regarded as giving
way TO principles which We're the spontaneous
Outgrowth of such condition. The transforms
tion. 1t is true was the emanation of the com.
munity; but the intermediate agents in the
work were not imperial or colonial legisla.
lures or royal or colonial judges, but the law
yers of the local bars.
And now let me, in conclusion, say that,
while preccdents are to be carefully studied as
the buoys Of Jurisprudence, they do not make.
but only mark the current OF the law, aud
that wien the current shifts they must be
made TO shift with II, II follows that while
lawyers are TO fAmiliarize themselves with
precedents, II is also important that they
should familiarize themselves with those CON
ditlons OF popular sense of right and need by
which procedents are made, qualified, and
set aside.