Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/834

 820 V. BENCH AND BAR care is- evidently necessary not to force them upon transac- tions which, if the meaning of the rule is to be observed, ought really to be exceptions." Maxim-Nordenfelt Co. v. Norden- felt, (1893) 1 Ch. 631. Bowen vitalized and enforced his exposition of legal prin- ciples by reference to history. " The only reasonable and the only satisfactory way of dealing with English law," he once said, " is to bring to bear upon it the historical method. Mere legal terminology may seem a dead thing. Mix his- tory with it and it clothes itself with life." In his brilliant application of this method he avoided many of the errors which have resulted from the attempt to give a rational or scientific basis to doctrines which owe their origin to his- torical accidents. A brief quotation from his opinion in a nisi prius action for illegal distraint, in which it was claimed that the landlord had broken an outer door, will illustrate his use of the historical method : " The doctrine of the in- violability of the outer doors of a house and its precinct has long been established by English law. The principle is one which carries us back in imagination to wilder times, when the outer door of a house, or the outer gates and enclosures of land, were an essential protection, not merely against fraud, but violence. The proposition that a man's house is his castle, which was crystallized into a maxim by the judg- ment in Semayne's case, and by Lord Coke, dates back to days far earlier still, when it was recognized as a limitation imposed by law on all process except that which was pur- sued at the King's suit and in his name. A landlord's right to distrain for arrears of rent is itself only a survival of one among a multitude of distraints which, both in England and other countries, belonged to a primitive period when legal procedure still retained some of the germs of a semi- barbarous custom of reprisals, of which instances abound in the early English books, and in the Irish Senchus Mor. Later, all creditors and all aggrieved persons who respected the King's peace, the sheriff in a civil suit and the landlord in pursuit of his private remedy for rent and services, were both of them held at bay by a bolted door or barred gate. To break open either was to deprive the owner of protection