Every innovation disturbs more by its novelty than benefits by its utility.
This is the rule adopted by the Legislature in considering proposed new laws, and by the courts of law and equity in reference to adjudged cases ; the rule being, that where the existing law or established precedents reasonably meet the evil to be remedied, or the case to be decided, neither the one nor the other ought to be disturbed. The Legislature do not, however, hold to the rule so strictly as the courts ; the former being obliged to yield to pressure from without, and therefore many novelties contravening this maxim become law ; the latter, not being generally subject to such influence, “ delight with measured step, for safety and repose, strictly to tread the beaten path of precedent.”
Where the nominee of a copyholder brought an action on the case against the lord of the manor for refusing to admit him upon a sm-render to the use of the nominee for life ; it was held that an action on the case would not He, the nominee having no interest ; the lord of the manor not being a ministerial officer, and there being no special custom of the manor to meet such a case ; the lord of the manor being as a trustee, who cannot be sued at common law for refusing to act. And this maxim was used by the Court to show the inconvenience of permitting such innovations in the established practice of the courts.
In an action for slander, which is a transitory action, the plaintiff in his declaration laid the words spoken as in London ; the defendant pleaded a concord for speaking words in all counties of England save London, and traversed the speaking the words in London. The plaintiff replied denying the concord, whereupon the defendant demurred, and judgment was given for the plaintiff. And in that case the Court said, that if the concord should not be traversed, it would follow that, by a new and subtle invention of pleading, the ancient principle of law which allowed transitory actions to be tried in any county would be subverted ; and, therefore, the Court allowed a traverse upon a traverse.
Lord Coke says in reference to this maxim : that the wisdom of the judges and sages of the law has always suppressed new and subtle inventions in derogation of the common law, nor will they change the law which always has been used ; and that it is better to be turned to a fault than that the law should be changed or any innovation made. He calls it an excellent part of legal learning, that when any innovation or new invention starts up, to try it by the rules of common law ; for that they are the true touchstones to sever the gold from the dross of novelties and new inventions.
The same 'principle has always governed our judges and sages in the law since Lord Coke's time to the present. They say, the duty of a judge is to expound, not to make law ; to decide upon it as he finds it, not as he wishes it to be. That our common law system consists in applying to new combinations of circumstances those rules of law which are derived from legal principles and judicial precedents ; and for the sake of attaining uniformity, consistency, and certainty, those rules must be applied, where they are not plainly unreasonably inconvenient, to all cases which arise. And, further, that, if there is a particular hardship from particular circumstances of a case, nothing can be more dangerous and mischievous than, upon those particular circumstances, to deviate from a general rule of law.
Poorde v. Hoskins, 2 Bulst. 338 ; Co. Litt. 282, 379 ; 4 Inst. 246 ; Pordage u. Cole, 1 Saund. 320 ; Miller v. Solomons, 7 Exch. 543 ; Bridges v. Chandos, 2 Ves. jun. 420 ; Doe v. Allen, 8 T. R. 504 ; Lozon v. Prise, 4 My. & Cr. 61 7 ; Mirehouse v, Rennell, 1 CI. & Fin. 546 ; Grey v. Friar, 4 H. L. Cas. 565; Mayor of Beverley ?>. Attorney-General, 6 H. L. Cas. 332 ; Smith v. Doe, 7 Price, 509 ; Dawson o. Dyer, 5 B. & Ad. 584 ; Kembler v. Farren, 6 Bing. 141.