Thomas Chandler Haliburton. a failure. But he found literary work more congenial than the ceaseless search for prece dents. About a dozen of his decisions have been reported, and they are all to be found in James' Nova Scotia Law Reports. A word about a few of them may not be out of place. In the Easter term of 1854, the court had to deal with the construction of an insurance policy in the case of Creighton v. The Union Insurance Co. The reporter states that Judge Haliburton " delivered a long critical examination . of the case, with reasons in extenso," the substance only of his reasons being given in the official re port. The following extract is given to show how he approached the difficulties of the case in hand. "I concur in the opinion expressed by his Lordship, the Chief Justice — not merely for the reasons assigned by him, but for some others of a different nature. I shall, therefore, in conformity with my usual practice, merely mention those additional principles which have operated on my mind. The Attorney-General stated that decided cases were now more liberally interpreted than formerly; he might have said that the law had of late been differently expounded. Mr. Justice Bliss seems to think that we are bound by the opinion of Sir James Mans field, in Spitta v. Woodman. I beg leave to dissent from that proposition. The uncon ditional surrender of private judgment to decided cases has drawn down the approbrium of British statesmen on the study of the law; and it has been broadly asserted that its tendency is to cripple and confine the mind. Most of these remarks have more in them of flippancy than of truth. It does not follow that the study of the law limits the mind; but the mind may cramp itself by the mode in which it studies. If decid ed cases are immutable, and so considered by the Courts where they are decided, as well as in those of more limited jurisdiction, like our own, we commit the fatal error of
493
surrendering up our judgments to those of other men. But I view the subject in a dif ferent light; and regard decided cases not as law — but evidence of law — or ex positions of law. Englishmen boast of their common law as though it were peculiar to themselves; we, however, know that a com mon law extensively prevailed in Greece and Rome, and now has existence in every civilized country of Europe, in the United States, and the North American colonies. The law has been defined by an ancient author of great celebrity to be ' the decision and adoption of certain principles subse quently sanctioned and recognized by the Courts. ' "He then winds up by stating it to be 'the golden rule of reason.' Lord Coke calls it ' the right reason.' "When Lord Thurlow was at the bar his practice was to take a case as he found it, and study it so inductively, till he reached his conclusion; when this was done he con sulted Lord Kenyon — a great case man; and nothing proves more conclusively the value of decisions than the fact that in most instances he arrived at pretty much the same result as that set forth in the cases, al though in a large number of instances his conclusions were sounder. Viewed in this light, the study of the law, so far from limiting, must enlarge the understanding. The com mon law is elastic, it is remarkable for its plasticity and adaption to all varieties of cir cumstances. In a new country like this — changing in its aspects, conditions, re quirements, with every returning year; where new interests, new combinations, and new difficulties are perpetually arising, it is impossible to apply stringent rules with the same unvarying fixity that marks their ap plicability to the circumstances of older and more stable countries. How can the same commercial rules be applied to a sparse ly populated country — designated only by its latitude and longitude and a few log huts — as apply to Gibraltar or Malta?"
