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favour of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and their contracts by it. It would therefore be extremely inconvenient to the public, if precedents were not duly regarded, and pretty implicitly followed. It is by the notoriety and stability of such rules, that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy, and to trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law. The language of Sir William Jones is exceedingly forcible on this point. "No man," says he, "who is not a lawyer, would ever know how to act; and no man who is a lawyer would, in many instances, know what to advise, unless courts were bound by authority as firmly as the Pagan deities were supposed to be bound by the decrees of fate."
Throughout the whole period of the Year Books, from the reign of Ed. III. to that of Hen. VII., the judges were incessantly urging the sacredness of precedents, and that a counsellor was not to be heard who spoke against them, and that they ought to judge as the ancient sages taught. If we judge against former precedents, said Ch. J. Prisot, it will be a bad example to the barristers and students at law, and they will not give any credit to the books, or have any faith in them. So the Court of King's Bench observed, in the time of James I., that the point which had been often ad
judged ought to rest in peace. The inviolability of precedents was thus inculcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period.
But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it. Lord Mansfield frequently observed, that the certainty of a rule was often of much more importance in mercantile cases than the reason of it, and that a settled rule ought to be observed for the sake of property; and yet, perhaps, no English judge ever made greater innovations and improvements in the law, or felt himself less embarrassed with the disposition of the elder cases when they came in his way, to impede the operation of his enlightened and cultivated judgment. His successor, Lord Kenyon, acted like a Roman dictator, appointed to recall and reinvigorate the ancient discipline. He controlled or overruled several very important decisions of Lord Mansfield, as dangerous innovations, and on the ground that they had departed from the precedents of former times, and disturbed the land-marks of property, and had unauthcrizedly superadded equity powers to a court of law. "It is my wish and my comfort," said that venerable judge, "to stand super antiquas vias. I cannot legislate, but by my
industry I can discover what our predecessors have done, and I will tread in their footsteps." The English courts seem now to consider it to be their duty to adhere to the authority of adjudged cases, when they have been so clearly, and so often, or so long established, as to create a practical rule of property, notwithstanding they may feel the hardship, or not perceive the reasonableness of the rule. There is great weight in the maxim of Lord Bacon," that optima est lex, quæ minimum relinquit arbitrio judicis; optimus judex, qui minimum sibi. The great difficulty as to cases, consists in making an accurate application of the general principle contained in them to new cases, presenting a change of circumstances. If the analogy be imperfect, the application may be erroneous. The expressions of every judge must also be taken with reference to the case on which he decides; we must look to the principle of the decision, and not to the manner in which the case is argued upon the bench, otherwise the law will be thrown into extreme confusion. The exercise of sound judgment is as necessary in the use, as diligence and learning are requisite in the pursuit, of adjudged cases.
Considering the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should
a Bacon's Works, vol. 7. 448., Aphor. 46.
b Best, Ch. J. 2 Bing. 229.
c M. Dupin, in his Jurisprudence des Arrels, has given us many excellent rules and observations, on the value, and on the abuse of the authority of reports of judicial decisions. He admits the force of them when correctly stated, and applied with discernment and sobriety; and that they have the force of law when there has been a series of uniform decisions on the same point, because they then become conclusive evidence of the law. The immense collection by M. Merlin, in his Repertoire, and especially in his Questions de Droit, he would say, had the stamp of Papinian, if it were permitted to compare any lawyer to Papinian.
not exhibit deep traces of the progress of society, as well as of the footsteps of time. The ancient reporters are going very fast not only out of use, but out of date, and almost out of recollection. The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law, and the most judicious application of abstract and eternal principles of right to the refinements of property. They are likewise accompanied by illustrations best adapted to the inquisitive and cultivated reason of the present age. But the old reporters cannot be entirely neglected, and I shall devote the remainder of this lecture to a short historical review of the principal reporters prior to the present times. No one ought to read a book, said M. Lami,* (and the remark has peculiar application to law books,) unless he knows something of the author, and when he wrote, and the character of the work, and the character of the edition.
For the sake of perspicuity and convenient arrangement, we will divide the reports into two classes: those that preceded, and those that are subsequent to the year 1688. I select that period, because the distinction between the old and new law seems then to be more distinctly marked. The cumbersome and oppressive appendages of the feudal tenures were abolished in the reign of Charles II., and the spirit of modern improvement, and of commercial policy, began then to be more sensibly felt, and more actively dif fused. The appointment of that great and honest lawyer, Lord Holt, to the station of chief justice of the King's Bench, gave a new tone and impulse to the vigour of the common law. The despotism of the Stuarts was abolished for ever, and the civil and political liberties of the English nation were more explicitly acknowledged and defined, at the accession of the house of Orange. The old reporters
a Entretiens sur les Sciences, et sur la maniére d'eludier.
will include all the reports from the Year Books down to that period; and we will, in the first place, bestow upon those of them which are the most distinguished, a cursory glance and rapid review.
The oldest reports extant on the English law, are the Year Books, which consist of eleven parts or volumes, written in law French, and extend from the beginning of the reign of Edward II. to the latter end of the reign of Henry VIII., a period of about two hundred years. There are a few broken cases, which may be gleaned from the old abridgments, and particularly from Fitzherbert, which go back to the reign of Henry III. The Year Books were printed by subscription in 1679; but they have never been translated, and they are not worth the labour and expense either of a new edition or a translation. The substance of the Year Books was afterwards included in the great abridgments of Statham, Fitzherbert, and Brooke, and those compilations superseded in a considerable degree the use of them. The Year Books were very much occupied with discussions touching the forms of writs, and the pleadings and practice in real actions, which have gone entirely out of use. In a late case in the C. B. the judges spoke with some sharpness of reproof against going back to the Year Books in search of a precedent in the case of levying a fine. The great authenticity and accuracy of the Year Books arose from the manner in which they were composed. There were four reporters appointed to that duty, and they had a yearly stipend from the crown, and they used to confer together, and the reports being settled by so many persons of approved diligence and learning, deservedly carried great credit with them. But so great have been the changes since the feudal ages, in the character of property, the business of civil life, and the practice of the courts, that the
a 2 Taunton, 201.
b Preface to Plouden's Reports.