from the tacit consent of the State, make part of our unwritten law. What has been said of decisions of the Court of Session is also applicable to the judgments pronounced upon appeal, by the House of Lords: for in these that august court acts in the character of judges, not of law-givers; and consequently their judgments, though they are final as to the parties in the appeal, cannot introduce any general rules which shall be binding either on themselves or inferior courts. Nevertheless, where a similar judgment is repeated in this court of the last resort, it ought to have the strongest influence on the determinations of inferior courts." 1

In his Principles, Book I. tit. 1, § 17, Erskine uses substantially the language of his Institutes. In the eighteenth edition by Mr. Rankine (1890) the following is added: "There is a scale of authority from the House of Lords down to the humblest tribunal; and a reported ground of judgment—not being a mere obiter dictum expressed in one case by a superior court, is binding in a similar case in an inferior court, unless and until it is itself reversed or displaced by statute." 2

The example of the English courts, and indeed the whole tone of the law in England, may have had an influence in elevating the importance of judicial precedents in Scotland above the condition. which they fill on the Continent; and also the power given to the Court of Session actually to legislate by means of Acts of Sederunt may have aided to give weight to their judgment in litigated

cases.

On the other hand, the fact that the court of ultimate appeal, the House of Lords, was a tribunal composed entirely of English judges (for I believe no one was ever called from the Scotch bench or bar to the House of Lords until the Appellate Jurisdiction Act of 1876), and the irritation which prevailed in Scotland at this state of affairs, had very likely considerable effect in maintaining in that country the doctrine that precedents do not make law.

Common Law. In England, and in those countries where the English law prevails, a different theory now exists. While in Germany, jurists insist that a decision by a court has, aside from its instrinsic merit, no binding force on a judge, even on a judge from whom an appeal lies to the court rendering the decision, it

1 See also the language of the earlier writers, Mackenzie, Inst. Book I. tit. 1, § 10 (1716); Bankton, 1 Inst. Book I. tit. 1, § 74 (1751).

2 See also 4 Leg. Obs. 289; 24 Journal of Jurisp. 140

is law in England and in the United States that, apart from its intrinsic merits, the decision of a court has great weight as a precedent with that court and all co-ordinate courts in the same jurisdiction, and is absolutely binding on all inferior courts.

The reason of this distinction is one of the many unsolved problems of comparative jurisprudence. And in the common law itself this regard for judicial precedents is a characteristic of its later, and not of its earlier stages.

Glanville, who was probably the real author of the "Tractatus de Legibus," which goes by his name, died in 1190. There seems to be but one reference in his book to a decision of a court. Book VII. c. I.

Bracton, whose Treatise, "De Legibus et Consuetudinibus Anglia," was written in the middle of the thirteenth century, forms a singular exception to the general rule. He abounds in references to cases. But Mr. Maitland, in his remarkable book, has shown that, with trifling exceptions, the cases cited by Bracton were all decided at courts in which Martin Pateshull and William Raleigh sat as judges. "His is a treatise on English law as administered by Pateshull and Raleigh." 1

Bracton was exceptional. Fleta, written towards the end of the thirteenth century, was largely drawn from Bracton, but in only one chapter does he refer to particular decisions. In this chapter (Lib. 2, c. 3) he gives three cases as to the jurisdiction of the Steward of the King's Court when the King was out of England, two of them being in Gascony and one in Paris, the last being a decision of the French King's Council that the King of England had jurisdiction over one Ingelramus caught in the English King's hotel with stolen goods. Ingelramus was tried before the Steward and was "suspensus in patibulo Sancti Germani de Pratis."

Britton, who also wrote about the close of the thirteenth century, took in like manner largely from Bracton, but I have found no reference whatever in his book to any decision of the courts.

So in the first Year Book yet printed, and which is later than Bracton and nearly contemporaneous with Fleta and Britton, 20 & 21 Edw. I. (1292–1293), the references to decisions are few and brief, e. g., "Witness the case of William de la Bathe" (p. 211): "Note that he who will allege payment must have either a writing or a tally. In the time of Thomas de Weylond a tally was not allowed; now it is" (p. 305). See also pp. 195, 415, 439.

1 Maitland, Bracton's Note Book, 40, 45, 48 et seqq., 60.

Nor does the citation of cases increase. Fifty years later, 14 Edw. III. (1340), the reports of which fill about two volumes in Mr. Pike's new edition of the Year Books, there are only three cases cited by name either by the bench or at the bar. 14 Edw. III. 37, 63, 247, 253. The other references are all to cases by their Term or other description, e. g., "Contra Michaelis nono," and all but one (p. 285) appear to be notes by the reporter or other owner of the book.1

Coming down to the end of the century (1400), 2 Hen. IV., we find the Year Book of that year containing reports of 131 cases filling 25 folios. There are three instances in which judges refer to particular decisions, 7 pl. 26; 10 pl. 45; 23 pl. 9. In another case counsel said that a married woman ought not to be allowed to plead in an action of waste after default by her husband, quod contra dicebatur per totam Curiam eo quod sæpius en tiel case el ad este receive, 2 pl. 7; again the practice of the King's Bench in replevin is declared to be different from that which prevails elsewhere, 9 pl. 44; in three other cases earlier decisions are referred to, but only not to be followed, 6 pl. 21; 15 pl. 16; 19 pl. 12; and in 21 pl. 20 the reporter notes that the decision made was not afterwards followed.

Let us take a time forty years later (1440), 18 Hen. VI. The reports for this year cover 34 folios. Lovell's Case is referred to twice by name, 8 pl. 7; 9 pl. 7. Berides, in four instances it is said, "ceo ad este adjuge," 6 pl. 6; 10 pl. 9; 15 pl. 3, bis.2 The two legal treatises of the fifteenth century make but little reference to judicial decisions as authority. In Fortescue's book, De Laudibus Legum Angliæ, there is ro reference to any decided case, and in the seven hundred and forty-nine sections of Littleton's Tenures, only eleven cases are referred to, usually in the briefest manner, §§ 88 (and 94), 96, 15, 383, 412, 420, 514, 643 (and 644), 692, 702, 729.

1 In Hengham Magna and Hengham Parva, the ward I.'s time, a case before Henricus de Bathonia is 10 ad fin.; the opinion of the same judge is referred same book, once in c. 8, and twice in c. 9; another case i is one reference in Hengham Parva, c. 3.

work of a Chief Justice in Ediven at length. Heng. Mag. c. in three other places of the veferred to in c. 13; and there

2 Lord Coke in the preface to the tenth volume of his Reports, speaking of his own time, says: "The ancient order of arguments by our serients and apprentices of law at the bar is altogether altered. 1. They never cited any book, case, or authority in particular, 'as is holden in 40 E. III.,' &c., but est temus agree in n're livres,' ' est tenus adjuge in termes,' or such like, which order yet remains Inner Temple to this day."

moots at the bar in the

-

Our last examination of the Year Books was in 1440; let us come down fifty years later, to 1490, 5 Hen. VII. In the Year Book for that year we find fifty-three cases, filling forty-one folios. Excluding reporters' notes, there are probably nine places where either court or counsel use "" ceo est adjuge" or other like expres sion, five times with a reference to the year (17 pl. 9; 23 pl. 4, bis; 25 pl. 7; 28 pl. 9) and four times without (4 pl. 9; 8 pl. 17; 15 pl. 14; 38 pl. 3). In three other places cases are referred to without name, but somewhat more at length (12 pl. 4; 16 pl. 9; 28 pl. 9); and in 19 pl. 1, the case of Boham v. Bishop of Lincoln, 33 Hen. VI. 12; 34 Hen. VI. 38, was relied on by counsel, but repudiated by Bryan, C. J., who said the law would not be held as it was there.

The last year which appears in the Year Books is 27 Hen. VIII. 1535, and of it only three terms are reported. Judicial decisions. are more frequently cited; still the references are not numerous.

Descending a generation, we come across one of the most famous and accurate of reporters, and the one perhaps who reported what passed in court at the greatest length, Edmund Plowden. The first ten cases in his second volume, not including the pleadings, fill over fifty folios or one hundred pages, and an examination of them yields the following result: Cases cited and stated as authority, seventeen; legal propositions cited from cases, five; cases cited but disallowed, two; in all, twenty-four cases referred to.

It is fair to remark, however, that in other reporters of the same period a somewhat larger number of references to decisions will be found, and that Plowden himself in one place speaks of his having omitted "many good cases" referred to by the judges.

The practice of citation blossomed out in Lord Coke. Opening in the middle of his reports, we find in the first twenty-five folios of the seventh volume, two hundred and twenty-eight (228) references to cases, an average twenty times greater than that of

Plowden.

Although later judges and writers have not been so prolific as Lord Coke, yet the importance attached to precedents has diminished but little since his time, and, as said above, the rule of the common law is that, aside from their intrinsic merits as the expression of the opinion of able and learned persons, the actual decisions of a court are of great weight with that court and all co-ordinate courts, and are absolutely binding upon all inferior

courts.

It seems impossible to give the force of judicial precedents in the common law more exactly; they have great weight, but not irresistible weight. Their decisions can be (and I mean can be according to the theory of the common law) overruled or not followed. Any attempt at more precise determination would. result simply in a theory by the particular writer as to what would. be desirable rules, and not of what are in fact the principles which govern.1

The circumstance that in the English law precedents are to be generally but not always followed, and that no rules have been, or apparently can be, laid down to determine the matter precisely, shows how largely the English law is the creation of judges, for they not only make the precedents, but say when the precedents shall be followed or departed from.

The House of Lords, however, according to modern theory, is absolutely bound to follow its own precedents.2 This notion is not an ancient one. In 1760 the House in Pelham v. Gregory, 3 Bro. P. C. (Toml. ed.) 204, overruled its decision made in 1736, in Brett v. Sawbridge, Id. 141, on a question of remoteness. But in 1827, in Fletcher v. Sondes, 1 Bligh, N. S. 144, 249, Lord Eton declared that the House was bound by Bishop of London v. Ffytche, 2 Bro. P. C. (Toml. ed.) 211, which was the last case where peers, not learned in the law, voted, and in which the courts of Common Pleas and King's Bench were overruled by a vote of nineteen to eighteen.

But in 1821, in the case of Perry v. Whitehead, 6 Ves. 544, 548, Lord Eldon said that "a rule of law laid down by the House of Lords must remain till altered by the House of Lords." As late as 1852 Lord St. Leonards expressed an opinion that the House was not bound by any rule of law which they might lay down, Bright v. Hutton, 3 H. L. C. 341; and in 1860, in A. G. v. Dean and Canons of Winsor, 8 H. L. C. 369, 459. Lord Kingsdown reserved his opinion upon the question; but during this time Lord Campbell was reiterating that the House could not change the rules of law it had laid down. 3 H. L. C. 391; 8 H. L. C. 391, 392;

1 The best statement of the circumstances which add to or diminish the weight of precedents is to be found in Ram on Judgments.

2 No such doctrine governs the Judicial Committee of the Privy Council, which is for colonial and certain other matters an ultimate court of appeal. Thus the decision that a colonial legislature had a common-law power to punish contempt, which was made in Beaumont v. Barrett, 1 Moore, P. C. 59 (1836), was overruled by Keilley v. Carson, 4 Moore, P. C. 63 (1842), the same judge, Baron Parke, delivering the opinion in both cases.