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and that now we may use it, without looking to such consequence. But shall we regard the reason and sense of them less because they cannot say we shall regard it? Voluntary submission is a legitimate authority. Decisions of the English courts since our separation have made great improvements on that portion of the law which is common to us both. Where our reason tells us that it is an improvement in giving light in the administration of justice, shall we not follow it for its own sake, as much as if there was a principle which says we shall do it? All the difference, is, that before our separation we might be bound to follow error, and now only truth. With respect to English decisions therefore, since our separation I am willing to take all advantage of them as much as if they were forced upon me; so that it is but in idea that I distinguish them as authorities. For I do not think that the act of our legislature immediately on our separation, and which is of the 28th Jan. 1777, by which it is provided that the common law and such of the statute laws of England as had heretofore been in force should be binding here, can be construed as fixing upon us the decisions of the English courts, either in matters of common law or statute construction, so that the exercise of judicial investigation should be restrained, and all question precluded. On the contrary, I would entertain the idea that we have at least an equal power with the English courts though we might exercise it with less confidence, in the examination and application of decisions. And in the course of that examination and application, what hinders to look at the recognition or rejection of principle on the same subject; or at the comments of the expounders of the same text; and if we look at them and find them reasonable, take them for our guides. In fact we do take them just as much now as we would have taken them before the revolution; and we might just as well say we do, as that we do not. The great lights that may be thrown on many parts of the law, and may be yet thrown upon it, are not to be neglected. The science is im. proving there, and shall we refuse ourselves the advantage of any help? I admit that respect for English authorities, may become servility; but, that is as likely to be the case or more likely, with regard to those before our separation than those since. A judge of the court in the last resor here may claim the privilege of a judge of the court of las resort in England in reviewing English decisions; which ar only evidence of law; and supposes a law of which they are the evidence; and to which, if erroneous they ought to be brought back. But what shall be the test of that error: I know nothing but the mind that is to judge. The principle is to be got at ; and that is to guide. I have nothing to de in these observations, with that part of the law that is mere ly arbitrary and is not founded in reason, but where the ita est, is the only thing that can be said about it. There is
h a thing as freedom of mind in a judge ; and narrowness of judges is spoken of in the commentaries of law; and an adstriction to decisions is a fault. But it is in the application of principle to case that the crror consists; for I have no idea that a judge has a power to make a principle, any more than to enact a statute ; but in application of principle to case error springs; for such case is said to prove such a principle, whereas it only proves that such a principle was applied in such a case. It is true that as a great part of the law is unwritten, it can only be from decisions, or chiefly, that we can ascertain the principle ; and in matters where reason has nothing to do these ought to be conclusive. But where reason can have a place, it is a maxim that what is against reason cannot be law. Here the advantage of the exercise of reason in deducing the principles of legal science, and the first lesson to a student of the law ought to be, to distrust authority. A mere automaton of decision, is little better than the machine that plays chess by springs.
But I have wandered from the point I had set out upon, the weight attributive to English decisions since our separation from that government. I shall only add a word or two upon the abuse of citing them. For I call it abuse to take up time in reading at great length from those decisions ; and to which I take to be owing, in a great degree, the popular prejudice against them; and which has been near excluding
them altogether, * which I should consider to be a loss; for there is much excellent sense to be found in them; and which may be a great help in the administration of justice. And it is with a view to contribute to prevent this total exclusion, that I have been willing to give these thoughts pubJicity. The public opinion is that the courts are governed by decisions as if these made the law; and that, from the force of education, and professional reading we are adscripti glebis, and as much serfs in mind, as those were in body that used to go with the clod. It ought not to be so; and with some exceptions is not so; and it is a great matter that it should be understood by the people, that unreasonable prejudices may not be excited, or exist. My idea of decisions posterior to the revolution is this; that they are the comments of men upon the same subject with that which we have to consider. It is as if men who had set out from the same place and having travelled together a certain distance, had parted; but having occasion to refer to the point at which they had set out, and the part of the ground travelled together, they should compare notes and correct their journals, as well as to notice the improvements that might be made, or to co-operate in making them. It it is true that this drew upon us the purchasing and reading in courts, the new books and late reports in England; but it saved, in a great degree, as it does in England, the consulting old books : for even there the year books, and Dyer, and many others are little seen. Many of them are out of print, and not to be got at with us at all. For these reasons I cannot say that I would be unwilling to see our act of assembly repealed, which goes to preclude the reading or citing in court the later authorities.
* Since excluded.
ON THE STARE DECISIS.
IT occurs to me to express a few thoughts on the respect due to prior decisions. Certain it is that the stare decisis, is a salutary maxim, but it has appeared to me, that it has been carried sufficiently far in this country: in England there is such a thing as a departure from decided cases ; and where there is not, we see nevertheless, in many instances, great dissatisfaction expressed with decisions. In the very first case, 2 East, 280, where lord Ellenborough takes his seat upon the bench, he uses these expressions : “ If this question had come now to be decided for the first time, I should have been prepared to decide it upon the plain words of the statute which have been broken in upon by many cases, laying down rules of construction much less plain than the · words of the statute itself.” And again, 301, “ As the case now before us, is in terms the same as that decided, I think it is better to abide by that determination than to introduce uncertainty into this branch of the law, it being often of more importance to have the rule settled, than to determine what it shall be. I am not however convinced, by the reasoning of that case, and if the point were new I should think otherwise.” And again, 3 East, 230, “ If the case were res integra I should have done no more than apply my understanding.” And 7 East, 60, “ If this were a case in which we were called upon to decide for the first time upon a recent statute, there would be strong ground for the argument; but the uniform decision has been otherwise, and that opinion has always prevailed in practice, though perhaps the opinion obtained at first without duly weighing the words. But after so great a length of time, and such a mass of property conveyed in this manner, it would be too much now to say, that all which has been done is erroneous.”
We may see from these words of lord Ellenborough that a series of decisions is not always, with him, conclusive evidence of what is right, and the revising the decision resolves itself into a question of expediency; and that will depend upon
Wo considerations, the “ quod sit nota” of the rule; and that of property having been changed under it.
Lord Kenyon, the preceding chief justice, came upon the bench under the great weight of a name just before him, and having for associates men whom he found there, and who had participated in the decisions, which he would have had to encounter, had he undertaken to unsettle any of what had been considered as established during that period. Nevertheless he discovers a freedom of mind, occasionally, with regard to decisions before their time, as 3d T. R. 155, where he uses this expression, “The question must be admitted on all hands to be inter apices juris, if the objection could prevail, it would not be because it is built on grounds of reason, but because ita lex scripta est ; and then, however unreasonable we might think it, we would not be warranted in trampling on a series of decided cases to overturn it. , But it does seem to militate against every idea of reason and justice. In a case of necessity I might be compelled to say, that what was supposed to be the old law was founded on mistake, and that the law of the country has in modern times beer better adopted to general convenience.” Here one niay observe that this adaptation must have had a beginning, and this could only be in the breaking off from precedent.
In 4 T. R. 151, he gave a little vent to his impression, that too much respect might be paid to the opinion of a great judge ; he observes that “it is not now necessary to consider whether lord Holt were right; in so pertinaciously adhering to his opinion before the statute of Ann, that no action could be maintained on promissary notes as instruments, but that they were only to be considered as evidence of the debt; that question exercised the judgments of the ablest men of that time; but the authority which his opinion had in Westminster Hall made others yield to him, and it was thought necessary to resort to the legislature to apply a remedy.”
It gives me pleasure here to take notice that this question has been most ably examined in the appendix to 1 Cranch; and the error of Holt, and his pertinacity abundantly ex