474
Scalia, J., dissenting
mon law was always meant to evolve. Take, for instance, Lord Coke's statement in the Institutes that "the reason of the law ceasing, the law itself ceases." This maxim is often cited by modern devotees of a turbulently changing common law—often in its Latin form (cessante ratione legis, cessat ipse lex) to create the impression of great venerability. In its original context, however, it had nothing to do with the power of common-law courts to change the law. At the point at which it appears in the Institutes, Coke was discussing the exception granted abbots and mayors from the obligation of military service to the King which attached to land ownership. Such service would be impracticable for a man of the cloth or a mayor. But, said Coke, "if they convey over the lands to any naturall man and his heires," the immunity "by the conveyance over ceaseth." 1 Institutes *70. In other words, the service which attached to the land would apply to any subsequent owner not cloaked in a similar immunity. It was in describing this change that Coke employed the Latin maxim cessante ratione legis, cessat ipse lex. It had to do, not with a changing of the common-law rule, but with a change of circumstances that rendered the common-law rule no longer applicable to the case.
The same is true of the similar quotation from Coke: "[R]atio legis est anima legis, et mutata legis ratione, mutatur et lex"—reason is the soul of the law; the reason of the law being changed, the law is also changed. This is taken from Coke's report of Milborn's Case, 7 Co. Rep. 6b, 7a (1587), a suit involving a town's responsibility for a murder committed within its precincts. The common-law rule had been that a town could be amerced for failure to apprehend a murderer who committed his crime on its streets during the day, but not a murderer who struck after nightfall, when its citizens were presumably asleep. Parliament, however, enacted a statute requiring towns to close their gates at night, and the court reasoned that thereafter a town that left its gates open could be amerced for the nocturnal homicide
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