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The possible weakness at any rate of the historical method as applied to the growth of institutions , is that it may induce men to think so much of the way in which an institution has come to be what it is , that they cease to consider with sufficient care what it is that an institution has become . If Lord Coke had [ 400 ] meant to distinguish between warranties and all covenants which in our loose modern sense are said to run with the land , this statement would be less satisfactory than the preceding . So far as we have gone , we have found that , wherever [ 381 ] one party steps into the rights or obligations of another , without in turn filling the situation of fact of which those rights or obligations are the legal consequences , the substitution is explained by a fictitious identification of the two individuals , which is derived from the analogy of the inheritance . The Supreme Court , e.g ., of Massachusetts may be called upon to determine in effect whether a law passed by the legislature of Massachusetts is , or is not , constitutional ; and the decision of the Court will certainly meet with obedience . But he would soon see that the articles of the constitution required a knowledge of the Articles of Confederation ; that the opinions of Washington , of Hamilton , and generally of the ' Tathers , " as one sometimes hears them called in America , threw light on the meaning of various constitutional articles ; and further , that the meaning of the constitution could not be adequately understood by any one who did not take into account the situation of the colonies before the separation from England and the rules of common law , as well as the general conceptions of law and justice inherited by English colonists from their English forefathers . The history of early law everywhere shows that the difficulty of transferring a mere right was greatly felt when the situation of fact from which it sprung could not also be transferred . This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the Whigs of 1688 . Any one will see that this is so who compares for a moment the position of writers , such as Kent or Story , who commented on the Constitution of America , with the situation of any person who undertakes to give instruction in the constitutional law of England .