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The grievance is constantly growing, for the number of periodical law reports and treatises which issue from the English and American press, is continually increasing ; and if we wish to receive assistance from the commercial systems of other nations, and to become acquainted with the principles of the Roman law, as received and adopted in continental Europe, we are still in greater danger of being confounded, and of having our fortitude subdued, by the immensity and variety of the labours of the civilians. It is necessary that the student should exercise much discretion and skill, in the selection of the books which he is to peruse. To encounter the whole mass of law publications in succession, if practicable, would be a melancholy waste or misapplication of strength and time.
amount to 33 volumes. The text books, or treatises, amount to 184 volumes, and the digests and abridgments to 67 volumes, making, in the whole, a copious library of 648 volumes, in addition to the statute law. See Humphreys on Real Property, p. 163. To these we may add upwards of 200 volumes of American reports, treatises, and digests.
a M. Camus annexed to his Lettres sur la Profession d'Avocat, a catalogue of select books for a lawyer's library, and which he deemed the most useful to possess and understand; and that catalogue, in the edition of 1772, included near 2,000 volumes, and many of them ponderous folios, and not one of them had any thing to do with the English statute or common law. It is now a complaint in France, that the crowd of reports of decisions encumber the law libraries ; and M. Dupin, in his Jurisprudence des Arrets, edit. 1822, alludes to the immensity of such collections, and the great abuses to which that species of jurisprudence is subject. His select law library, for the use of law students and young advocates, contained 343 volumes. One great abuse in the practice of reporting is, that there is no very careful selection of decisions which are only worthy to be reported, but every adjudication, though upon common-place learning, and upon points which have been again and again decided, is usually given in one promiscuous mass. Lord Bacon, in his proposition for the amendment of the law, wisely recommended “that homonymice, as Justinian called them, that is, cascs merely of iteration and repetition, be purged away."
Lord Bacon, in the aphorisms annexed to his treatise De augmentis Scientiarum, speaks of the necessity of a revision and digest of the law, in order to restore it to a sound and profitable state, whenever there has arisen a vast accumulation of volumes, throwing the system into confusion and uncertainty. The evils resulting from an indigestible heap of laws, and legal authorities, are great and manifest. They destroy the certainty of the law, and promote litigation, delay, and subtilty. The professors of the law cannot afford the expense and time necessary to collect and study the volumes, and they are obliged to rely too much on the second-hand authority of digests—ipse alvocatus, cum tot libros perlegere et vincere non possit, compendia sectatur -glossa fortasse aliqua bona. The period anticipated by Lord Bacon seems now to have arrived. The spirit of the present age, and the cause of truth and justice, require more simplicity in the system, and that the text authorities should be reduced within the manageable limits; and a new digest of the whole body of the American common law, upon the excellent model of Comyn's Digest, and executed by a like master artist, retaining what is applicable, and rejecting every thing that is obsolete and inapplicable to our institutions, would be an immense public blessing
A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made
solemn argument and mature deliberation, the presumption is in
a Bacon's Aphorisms, De accumulatione legum nimin, Aph. No. 53–58. De novis digestis legum, Aph. No. 59–64. De scriptoribus authenticis, Aph. No. 78.
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,d 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
a 16 Johnson, 402.
d 33 Hen. VI. 41. b 20 Johnson, 722.
e Cro, Jac, 527. c Jones' Essay on Bailment, p. 48.
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 judre, “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 clearls, 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 com. pare any lawyer to Papinian.