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Home > Journals > Michigan Law Review > MLR > Volume 11 > Issue 5 (1913)

 

Abstract

Lord Mansfield is said to have remarked that "nothing in law is so apt to mislead as a metaphor;"' and if the remark is applied to branches of the law, the principles of which are fully developed and abundantly illustrated by decided cases, it is doubtless very true. But the historian of law, who looks at the efforts of the courts to create these principles 'by the expansion and adaptation of a few narrow remedies, will not be inclined to undervalue the use of the metaphor or analogy, 'when used to give effect to the requirements of public policy, and with a due regard to the claims of the technical logic appropriate to the system in which it is employed. A very cursory acquaintance with the Year Books will illustrate this point. The lawyers constantly used the analogies to be derived from the rules applicable to one class of writ to maintain the argument which they were urging as to the law applicable to proceedings under another class of writ.2 Thus, as I have elsewhere pointed out, the real actions were the most highly developed class of actions in the mediaeval common law; and therefore we often find that analogies derived from them, or rules of law first applied in reference to them, are, when necessary, extended by analogy to other classes of action.3 Still more often do counsel in search of an argument use these analogies; and to us who look at their arguments from the point of view of the settled modern law, and not from the point of view of the period 'when this law was still in the making, they often seem to use them very wildly This process was carried out on a great scale by COKE in his Commentary on LITTLETON, and in his Reports, and, on the whole, he and others of his contemporaries very skillfully adapted by this method much of the medieval law of the Year Books to modern needs.

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