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The antipathy to legal codification, which, until recent years, was a characteristic both of the English and American bar, and still prevails, though with diminishing force, has given, and necessarily given, great force to judicial precedents.

It is mainly through them that with us unwritten law passes into written law. Precedent is a fruit of reason ripened by time. Time, it has been said, is the daughter of Antiquity and takes place after Reason, which is the daughter of Eternity. Precedent rests on both. A legal code framed in any American State is little more than the orderly statement of what American courts have decided the law to be on certain points.

When reason is set to work upon the solution of a problem growing out of the affairs of daily life, it often happens that two minds will pursue different paths and perhaps come to different results. Not infrequently neither result can fairly be pronounced untenable. An English judge has said that nine-tenths of the cases which had ever gone to judgment in the highest courts of England might have been decided the other way without any violence to the principles of the common law.

Every lawsuit looks to two results: to end a controversy, and to end it justly; and in the administration of human government the first is almost as important as the last.[Footnote: Hoyt _v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of the essence of justice; but among men and as administered by their governments it can only be such certainty as may be attained by an impartial, intelligent, and well-trained judge. If such a judge has, after a proper hearing, declared what, under a particular set of circumstances, the law is which determines the rights of the parties interested, this declaration makes it certain, once and forever, as far as they are concerned, and helps to make it certain as to any others in the future between whom there is a controversy under circumstances that are similar. If it is the declaration of a court of supreme authority it is ordinarily accepted as of binding force by any inferior courts of the same government, and treated with great respect and as high evidence of the law by any other of its superior courts, as well as by courts of other States before which a similar question may be presented.

A decision on a point of law by the highest court in a State does not, however, bind its lower courts as absolutely as would a statute. An inferior court may disregard it and decide the same point another way if it be fully satisfied that the action taken by the court above was ill-considered and erroneous. It is possible that in such event, on reconsideration, the court of last resort may reverse its original position.[Footnote: A good instance of this is furnished by the case of Johnson _v._ People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895. In McFarland _v._ People, 72 Illinois Reports, 368, the Supreme Court had stated in its opinion, that if two unimpeached witnesses gave the only testimony as to a certain point material to the plaintiff's case, and testified in contradiction of each other, the case failed for want of proof. Many years later a charge to the jury to this effect was asked and refused in an inferior court. An appeal was taken to the Supreme Court, and there Mr. Justice Schofield, the author of the original opinion, thus disposed of it: "Although in McFarland _v._ People, 72 III., 368, the writer of this opinion expressed the belief that a similar instruction was free of legal objection, his remarks in that respect were unnecessary to a determination of the case then before the court, and they were made without sufficient consideration, and are manifestly inaccurate. They are now overruled. The question of competency is one of law, and therefore for the court; but the question of credibility,--that is, of worthiness of belief,--and therefore the effect of the competent evidence of each witness, is one of fact, and for the jury."] If not, that acquires by this attack a double force.

Chief Justice Bleckley of Georgia once remarked that courts of last resort lived by correcting the errors of others and adhering to their own. Nevertheless, they have often, years after formally announcing a certain legal doctrine in one of their opinions, declared it to be unsound, and overruled the case in which it was laid down. They do this, however, with natural and proper reluctance, and never if this doctrine is one affecting private rights of property and has been followed for so long a course of time that it may be considered as a rule on which the people have relied in exchanging values and transferring titles.

The public, however, have rights to be regarded as fully as individuals, and if a right of private ownership has been adjudged to exist, which involves a public loss, the precedent thus created might be overruled with less hesitation than one would be determining rights and correlative obligations that were purely private. Thus the North Carolina courts for seventy years held that a public office was the private property of the incumbent. No other courts in the United States took that view, and it has, by a recent decision, been repudiated in North Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports Annotated, 697.]

Still more are public interests to be regarded when a question arises as to reversing a decision as to the proper construction of a constitutional provision. If a judicial mistake be made in construing a statute it is easily remedied. The next legislature can amend the law. But a Constitution can only be amended with extreme difficulty and by a slow process. If the court falls into error as to its meaning, the correction must ordinarily come from its own action or not at all. Hence an opinion on a matter of constitutional construction is less to be regarded as a final and conclusive precedent than one rendered on a matter of mere private right.

It has been the position of some American statesmen and jurists that judicial decisions on points of constitutional construction were not binding upon the executive or legislative department of the government. President Jackson asserted this with great force in his message to the Senate of July 10, 1832, disapproving the re-charter of the Bank of the United States. He conceded, however, that a judicial precedent may be conclusive when it has received the settled acquiescence of the people and the States. But while such acquiescence may strengthen the authority of a decision, it can hardly be regarded as that which gives it authority. That comes from the fact that it is an exercise of the judicial power of the government in a case for the disposal of which this judicial power has been properly invoked.

The decision of the court in McCulloch _v._ Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby, "The American Constitutional System," 44, 123.] unquestionably settled forever, as between the cashier of the bank and the State of Maryland, that the bank was a lawful institution. That in Osborn _v._ The Bank of the United States[Footnote: 9 Wheaton's Reports, 738.] reaffirmed it as between the bank and the Treasurer of the State of Ohio. It would be intolerable if such judgments were not in effect equally conclusive for the determination of all controversies between all men and all States growing out of the creation of such a corporation. Practically, then, the opinion of the executive department to the contrary could only be of importance in such a case as Jackson had in hand; that is, in its influencing executive action in approving or disapproving some proposed measure of legislation. It could not disturb the past.

The authority of a judicial precedent is weakened if it comes from a divided court, and especially if a dissenting opinion is filed in behalf of the minority. A silent dissent indicates that the judge from whom it proceeds is not so impressed by the fact, or the importance to the public, of what he deems the error of the majority that he thinks it worth while to express the reasons which lead him to differ from them.

No departure from precedent in any American court has ever awakened so much feeling as that by the Supreme Court of the United States in 1872, when it decided that Congress could make government notes a legal tender for debts contracted before the law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's Reports, 457, 529.] It had held precisely the contrary two years before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's Reports, 603.] but it was by a bare majority and in the face of a strong dissenting opinion. In the opinions filed in the second case stress was laid upon this division of the court.[Footnote: 12 Wallace's Reports, 553, 569. See George F. Hoar, "Autobiography," I, 286.]

The word "established" is often used to describe the kind of precedent to which courts are bound to adhere. What serves to establish one?  Long popular usage, repeated judicial affirmations, and general recognition by approved writers on legal topics. Of these, in fact, the last is probably the most powerful. Lawyers and courts, in countries without codes, get their law mainly from the standard text-books. Such authors as Coke, Blackstone, Kent and Cooley are freely cited and relied on as authorities by the highest tribunals.[Footnote: See, for instance, Western Union Telegraph Co. _v._ Call Publishing Co., 181 United States Reports, 101; Louisville Ferry Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It is by the writings of such men that judicial precedents are sifted and legal doctrines finally clothed in appropriate terms and arranged in scientific order.

The English courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. American courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. This construction was shown by Professor John C. Gray, in a work on "Perpetuities," to be unwarranted, and since its publication the cases which had proceeded on that basis have been generally treated as erroneous.

The nature of a legal presumption, also, had been misconceived by several American courts. It had been treated as evidence of facts.[Footnote: Coffin _v._ United States, 156 United States Reports, 432.] Professor J. B. Thayer, in his "Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-575.] argued so forcibly against this view that in at least one State a decision in which it had been taken has been formally overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life Association, 77 Connecticut Reports, 281, 291; 58 Atlantic Reporter, 963.]

The Court of Appeals of New York once held in a carefully prepared opinion that a railroad might be built along the shore of a navigable river, under authority from the State, without first making compensation to the riparian proprietors, whose access to the waters might thus be obstructed.[Footnote: Gould _v._ Hudson River Railroad Co., 6 New York Reports, 522.] In a text-book written by Chief Justice Cooley, this decision was justly criticised,[Footnote: Cooley on Constitutional Limitations, 670.] and not long after the publication of that work it was formally overruled.[Footnote: Rumsey _v._ New York and New England Railroad Co., 133 New York Reports, 79; 30 Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.] It is safe to say that its fate was largely the result of the comments thus made by a distinguished jurist, whose only motive could be to maintain the integrity and consistency of legal science.

The general doctrine of the courts, which is commonly expressed by the rule "_stare decisis_," was never better stated than by Chief Justice Black of Pennsylvania, in these words:

  When a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be procured in favor of the unwritten law. It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that _stare decisis_ is itself a principle of great magnitude and importance....

  A palpable mistake, violating justice, reason and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. There are some which must be disregarded, because they cannot be reconciled with others. There are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. _Tempora mutantur_. We change with the change of the times, as necessarily as we move with the motion of the earth. But in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports, 423.]

Generally, overruling a former decision is due to a change of circumstances, which has given the court a new view-point. A marked instance of this occurred in 1851, in proceedings before the Supreme Court of the United States. More than a quarter of a century before, a suit in admiralty for seamen's wages on an inland river had been dismissed by the District Court of Kentucky for want of jurisdiction, and on appeal this action had been affirmed. Mr. Justice Story gave the opinion of the court, and said that a court of admiralty could only take cognizance of such a claim when the services were rendered at sea or upon waters within the ebb and flow of the tide.[Footnote: The Thomas Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a true statement of what had always been the doctrine of both English and American courts. But out of what did this doctrine spring?  From the fact that in England there were no navigable waters except those in which the tide ebbed and flowed, and that in the United States, up to that time, there were none of a different kind which had been largely used for commercial purposes. Twenty years passed. Steam navigation had opened the great lakes and the great rivers of the country to a profitable carrying trade. The day was dawning when the bulk of American shipping was to be employed upon them. A suit in admiralty was brought against a ship for sinking another on Lake Ontario. The defendants put in an answer relying on the doctrine laid down by Story. The District Court overruled it. The case came by appeal to the Supreme Court, and in an opinion by Chief Justice Taney the appeal was dismissed. "The conviction," he said, referring to the opinion of Mr. Justice Story, "that this definition of admiralty powers was narrower than the Constitution contemplated, has been growing stronger every day with the growing commerce on the lakes and navigable rivers of the western States.... These lakes are in truth inland seas. Different States border on them on one side and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas applies with equal force to the lakes. There is an equal necessity for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established neither can the other.... The case of the _Thomas Jefferson_ did not decide any question of property or lay down any rule by which the right of property should be determined.... The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."[Footnote: The Genesee Chief, 12 Howard's Reports, 443, 451.]

But without any change of circumstances, the proper desire of all American courts to keep their common law in harmony with that of the other States is often sufficient to induce the abandonment of a doctrine once distinctly asserted.[Footnote: City of South Bend _v._ Turner, 156 Indiana Reports, 418; 60 Northeastern Reporter, 271.] The consistency of American law as a whole is immeasurably more important than the consistency of the law of any single State.

Sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it.

Illinois for a long generation adopted the rule that if an injury occurred to one man through the concurring negligence of himself and another, but his negligence was slighter than that of the other, he might hold the latter responsible for the damages suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was not a doctrine justified by the common law nor generally held in this country, and in 1894 the Supreme Court of the State refused to recognize it, with little or nothing more than this brief _ipse dixit_: "The doctrine of comparative negligence is no longer the law of this court."[Footnote: Lanark _v._ Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter, 892.]

Occasionally a case is overruled because it has been forgotten.

An early decision in Massachusetts (Loomis _v._ Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the position that if a statute required contracts of a certain kind to be put in writing, and a contract of that kind, but embracing also a different and distinct matter not touched by the statute, was made orally, it was wholly void. Such a rule was illogical and unsound, and in a later decision the same court, forgetting that it had indorsed it, said so, and said so when it was not necessary to the decision.[Footnote: Irvine _v._ Stone, 6 Cushing's Reports, 508, 510.] Subsequently, both these cases having been brought to its attention, it affirmed the latter, though remarking that "what was there said on this point was not essential to the decision of that case, and would have been omitted or modified if Loomis _v._ Newhall had been then remembered."[Footnote: Rand _v._ Mather, 11 Cushing's Reports, 1, 5.]

The authority of an opinion as a precedent on any point is always proportioned to the necessity of determining that point in order to support the judgment which was rendered. Some judges write treatises instead of decisions or in addition to decisions. Whatever goes beyond that which is required to show that the judgment is the legal conclusion from the ascertained facts is styled in law language _obiter dictum_. It may be interesting and even persuasive, but it is not an authoritative statement of law.

It may grow to be such by adoption in subsequent cases. The Court of King's Bench in England was called on, at the beginning of the eighteenth century, to say whether if a man undertook as a friendly act, and not for pay, to cart another's goods, and did it carelessly, he was bound to answer for any damage that might result. There were four judges who heard the case, of whom three gave their opinions.[Footnote: Coggs _v._ Bernard, Lord Raymond's Reports, 909.] Two of these opinions were confined to the precise point of law on which the case turned. In the third, Chief Justice Holt seized the opportunity to lay down the law of England as to all sorts of contracts arising out of the reception by one man of the goods of another. This he did mainly by setting forth what were the rules of the Roman law on the subject, but not referring to their Roman origin, and quoting them, so far as he could, from Bracton, an English legal writer of the thirteenth century, who had also stated them as English law.

For four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. Now the Chief Justice of England had given such recognition in the amplest manner. Meanwhile the trade of England had reached a point at which some definite rules on all these matters had become of the utmost importance. The bar were only too glad to advise their clients in accordance with Lord Holt's opinion. It was not long before it was universally practiced upon, and no case in the English language touching contract relations of that nature is of greater importance as a precedent. Yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which--whether at Rome or London--they cared little, so long as it had been accepted by the highest judicial authority in the realm.

On the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them.

Two of the great opinions of Chief Justice Marshall are Marbury _v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens _v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the first the court held that it had no jurisdiction to command the Secretary of State to deliver a commission executed under the preceding administration, because, although Congress had assumed to confer it, Congress had no power to do so; and in defending this position Marshall observed that the Constitution defined the jurisdiction of the Supreme Court over cases brought there in the first instance, and that in this clause of the Constitution affirmative words had the force of negative words so far as to exclude jurisdiction over any other cases than those specifically mentioned. In the second case this observation was relied on by Virginia to defeat the power of the court to review a State judgment. But, said the Chief Justice, "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.... In the case of Marbury _v._ Madison, the single question before the court, so far as that case can be applied to this, was whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But in the reasoning of the court in support of this decision some expressions are used which go far beyond it.... The general expressions in the case of Marbury _v._ Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case or the tenor of its reasoning." He then proceeded to dispose of the case in hand by saying that Virginia having obtained an erroneous judgment against Cohens, Cohens had a right to appeal, and the suit still remained a suit by a State against him and not by him against a State. Unfortunately, here again came in next an _obiter dictum_. If, he said, this were not so, there was another principle equally decisive in support of the jurisdiction, namely, that the Constitution gave the United States judicial power over all cases arising under the Constitution or laws of the United States without respect to parties. Nearly a hundred years later a State was sued in the courts of the United States on a cause of action arising under the Constitution, and Cohens _v._ Virginia was relied on as a precedent. "It must be conceded," was the reply of the Supreme Court, "that the last observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion."[Footnote: Hans _v._ Louisiana, 134 United States Reports, 1, 20.]

It may be added that decisions on a point not material to the cause are generally made without the benefit of previous argument by counsel. The lawyers will naturally address themselves to the controlling questions, and if well trained will see what these are quite as clearly as the court. It is the argument at the bar, in which different views of law are presented and each defended by men of learning and ability, which enables the judge, after hearing both sides and weighing all that is said in behalf of one against all that is said in behalf of the other, to come to the true conclusion. The Romans recognized this in their rule as to the force of precedent in a matter of customary law. The first thing to ask was whether "_contradicto aliquando judicio consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de legibus_, etc., 34.]

The retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. This is occasionally feasible. Thus the High Court of Errors and Appeals of Mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. Thirty years later the Supreme Court of the same State overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[Footnote: 1 Bank of Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]

The effect of overruling a former opinion may also be limited by the dual character of our government.

The courts of the United States follow the decisions of the State courts in the determination of matters of State law. If a State law is held by the courts of the State to have a particular meaning and effect it will be accorded the same in the federal courts. But if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the State courts afterward reverse their former rulings as being erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191 United States Reports, 499.]

De Tocqueville, in his estimate of the American bar,[Footnote: 3 "Democracy in America," II, Chap. XVI.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason.

In a very limited sense this is true. Where codes are wanting, former judicial decisions must serve in their place. But it would be a mistake to suppose that it is a large part of the business of American lawyers to search out precedents for the guidance of the courts. Most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. No aid from the past is needed for this and none is to be had. It has been well said by an English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10 Chancery Appeal Cases, 526.] that the clearer a thing is the more difficult it is to find any express authority or any _dictum_ exactly to the point. Nor, if there be one, is it to be accepted without regard to the circumstances out of which it arose or the end to be effected by the judgment. A precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. Many an argument at the bar, however, is ruined by an excessive anxiety to repeat the _ipsissima verba_ of some ancient opinion, when the soul of it is the only thing of value. And occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality.