of constitutional law will be decided in a private litigation, and the parties to the controversy, and all others subsequently acquiring rights under them, in the subject-matter of the suit, will thereby become absolutely and for ever precluded from renewing the question in respect to the matter then involved. The rule of conclusiveness to this extent is one of the most inflexi[*48] ble principles of the law; insomuch that even if it were subsequently held by the courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto.1

*

But if important principles of constitutional law can be thus disposed of in suits involving only private rights, and when private individuals and their counsel alone are heard, it becomes of interest to know how far, if at all, other individuals and the public at large are affected by the decision. And here it will be discovered that quite a different rule prevails, and that a judicial decision has no such force of absolute conclusiveness as to other parties as it is allowed to possess between the parties to the litigation in which the decision has been made, and those who have succeeded to their rights.

12 Wend. 399; Hayes v. Reese, 34 Barb. 151; Hyatt v. Bates, 35 Barb. 308; Harris v. Harris, 36 Barb. 88; Young v. Black, 7 Cranch, 567; Chapman v. Smith, 16 How. 114; Wales v. Lyon, 2 Mich. 276; Prentiss v. Holbrook, 2 Mich. 372; Van Kleek v. Eggleston, 7 Mich. 511; Newberry v. Trowbridge, 13 Mich. 278; Crandall v. James, 6 R. I. 144; Babcock v. Camp, 12 Ohio, N. s. 11; Warner v. Scott, 39 Penn. St. 274; Kerr v. Union Bank, 18 Md. 396; Eimer v. Richards, 25 Ill. 289; Wright v. Leclaire, 3 Iowa, 241; Whittaker v. Johnson County, 12 Iowa, 595; Peay v. Duncan, 20 Ark. 85; Madox v. Graham, 2 Met. (Ky.) 56; George v. Gillespie, 1 Greene (Iowa), 421; Clark v. Sammons, 12 Iowa, 368; Taylor v. Chambers, 1 Iowa, 124; Skelding v. Whitney, 3 Wend. 154; Aurora City v. West, 7 Wal. 82. A judgment, however, is conclusive as an estoppel as to those facts without the existence and proof of which it could not have been rendered; and if it might have been given on any one of several grounds, it is conclusive between the parties as to neither of them. Lea v. Lea, 97 Mass. 493. And see Dickinson v. Hayes, 31 Conn. 417; Church v. Chapin, 35 Vt. 223; Packet Co. v. Sickles, 5 Wal. 580.

1 McLean v. Hugarin, 13 Johns. 184; Morgan v. Plumb, 9 Wend. 287; Wilder v. Case, 16 Wend. 583; Baker v. Rand, 13 Barb. 152; Kelley v. Pike, 5 Cush. 484; Hart v. Jewett, 11 Iowa, 276; Colburn v. Woodworth, 31 Barb. 381; Newberry v. Trowbridge, 13 Mich. 278; Skildin v. Herrick, 3 Wend. 154; Brockway v. Kinney, 2 Johns. 210; Platner v. Best, 11 Johns. 530; Phillips v. Berick, 16 Johns. 136; Page v. Fowler, 37 Cal. 100.

A party is estopped by a judgment against him from disputing its correctness, so far as the point directly involved in the case was concerned, whether the reasons upon which it was based were sound or not, and even if no reasons were given therefor. And if the parties themselves are estopped, so also should be all those who, since the decision, claim to have acquired interests in the subject-matter of the judgment from or under the parties, as personal representatives, heirs-at-law, donees, or purchasers, and who are therefore considered in the law as privies. But if strangers who have no interest in that subject-matter are to be in like manner concluded, because their controversies are supposed to involve the same question of law, we shall not only be forced into a series of endless inquiries, often resulting in little satisfaction, in order to ascertain whether the question is the same, but we shall also be met by the query, whether we are not concluding parties by decisions which others have obtained in fictitious controversies and by collusion, or suffered to pass without sufficient consideration and discussion, and which might have been given otherwise had these parties had an opportunity of being heard.

*We have already seen that the force of a judgment [49] does not depend upon the reasons given therefor, or upon the circumstance that any were or were not given. If there were, they may have covered portions of the controversy only, or they may have had such reference to facts peculiar to that case, that in any other controversy, though somewhat similar in its facts, and apparently resembling it in its legal bearings, grave doubts might arise whether it ought to fall within the same general principle. If one judgment was absolutely to conclude the parties to any similar controversy, we ought at least to be able to look into the judicial mind, in order that we might ascertain of a surety that all those facts which influence the questions of law were substantially the same in each, and we ought also to be able to see that the first litigation was conducted in entire good faith, and that all those considerations were presented to the court which could properly have weight in the construction and application of the law. All these things, however, are manifestly impossible; and the law therefore wisely excludes judgments from being used to the prejudice of strangers to the controversy, and restricts their conclusive

[51]

ness to parties thereto and their privies.1 Even parties and privies are bound only so far as regards the subject-matter then involved, and would be at liberty to raise the same questions anew in a distinct controversy affecting some distinct subject-matter.2

All judgments, however, are supposed to apply the existing law to the facts of the case; and the reasons which are sufficient to influence the court to a particular conclusion in one case ought to be sufficient to bring it or any other court to the same conclusion in all other like cases where no modification of the law has intervened. There would thus be uniform rules for the administration of justice, and the same measure that is meted out [* 50] *to one would be received by all others. And even if the same or any other court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is a very serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same. reasons, is obviously preferable. Precedents, therefore, become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Chancellor Kent says: "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,

1 Burrill v. West, 2 N. H. 190; Davis v. Wood, 1 Wheat. 6; Jackson v. Vedder, 3 Johns. 8; Case v. Reeve, 14 Johns. 79; Alexander v. Taylor, 4 Denio, 302; Van Bokkelin v. Ingersoll, 5 Wend. 315; Smith v. Ballantyne, 10 Paige, 101; Orphan House v. Lawrence, 11 Paige, 80; Thomas v. Hubbell, 15 N. Y. 405; Wood v. Stephen, 1 Serg. & R. 175; Peterson v. Lothrop, 34 Penn. St. 223; Twambly v. Henley, 4 Mass. 441; Este v. Strong, 2 Ohio, 401; Cowles v. Harts, 3 Conn. 516; Floyd v. Mintsey, 5 Rich. 361; Riggins's Ex'rs v. Brown, 12 Geo. 271; Persons v. Jones, ib. 371.

2 Van Alstine v. Railroad Co. 34 Barb. 28; Taylor v. McCracken, 2 Blackf. 260; Cook v. Vimont, 6 T. B. Monr. 284.

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unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor 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 contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly regarded, and 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 to buy and 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 once been 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 urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law." 1

1 1 Kent, 175. And see Cro. Jac. 527; Goodtitle v. Otway, 7 T. R. 416; Selby. Bardons, 3 B. & Ad. 17; Fletcher v. Lord Somers, 3 Bing. 588; Anderson v. Jackson, 16 Johns. 402; Goodell v. Jackson, 20 Johns. 722; Bates v. Releyea, 23 Wend. 340; Emerson v. Atwater, 7 Mich. 12; Nelson v. Allen, 1 Yerg. 376; Palmer v. Lawrence, 5 N. Y. 389; Kneeland v. Milwaukee, 15 Wis. 458; Boon v. Bowers, 30 Miss. 246; Rex v. Cox, 2 Burr. 787; King v. Younger, 5 T. R. 450; Hammond v. Anderson, 4 B. & P. 69; Broom's Maxims, 109. Dr. Lieber thinks the doctrine of the precedent especially valuable in a free country. "Liberty and steady progression require the principle of the precedent in all spheres. It is one of the roots with which the tree of liberty fastens in the soil of real life, and through which it receives the sap of fresh existence. It is the weapon by which interference is warded off. The principle of the precedent is eminently philosophical. The English Constitution would not have developed itself without it. What is called the English Constitution consists of the fundamentals of the British polity, laid down in custom, precedent, decisions, and statutes; and the common law in it is a far greater portion than the statute law. The English Constitution is chiefly a common-law constitution; and this reflex of a continuous society in a continuous law is more truly philosophical than the theoretic and systematic, but lifeless constitutions of recent France." Civ. Lib. and Self-Gov. See also his chapter on precedents in the Hermeneutics. In Nelson v. Allen, 1 Yerg. 376, where the constitutionality of the "Betterment Law" came under consideration, the court (White, J.) say: 'Whatever might be my own opinion upon this question, not to assent to its settlement now, after two solemn decisions of this court, the last made upwards of fourteen years ago, and not only no opposing decision, but no attempt even by any case, during all

66

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*The doctrine of stare decisis, however, is only applicable, in its full force, within the territorial jurisdiction of [52] the courts making * the decisions, since there alone can such decisions be regarded as having established any rules. Rulings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides except in so far as those reasons commend themselves to the judicial mind.1 Great Britain and the thirteen original States had each substantially the same system of common law originally, and a decision now by one of the higher courts of Great Britain as to what the common law is upon any point is certainly entitled to great respect in any of the States, though not necessarily to be accepted as binding authority any more than the decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the coun

this time, to call the point again in controversy, forming a complete acquiescence, would be, at the least, inconsistent, perhaps mischievous, and uncalled for by a correct discharge of official duty. Much respect has always been paid to the contemporaneous construction of statutes, and a forbidding caution hath always accompanied any approach towards unsettling it, dictated no doubt by easily foreseen consequences attending a sudden change of a rule of property, necessarily introductory at least of confusion, increased litigation, and the disturbance of the peace of society. The most able judges and the greatest names on the bench have held this view of the subject, and occasionally expressed themselves to that effect, either tacitly or openly, intimating that if they had held a part in the first construction they would have been of a different opinion; but the construction having been made, they give their assent thereto. Thus Lord Ellenborough, in 2 East, 302, remarks: I think it is better to abide by that determination, than to introduce uncertainty into this branch of the law, it being often more important to have the rule settled, than to determine what it shall be. I am not, however, convinced by the reasoning in this case, and if the point were new I should think otherwise.' Lord Mansfield, in 1 Burr. 419, says: Where solemn determinations acquiesced under had settled precise cases, and a rule of property, they ought, for the sake of certainty, to be observed, as if they had originally formed a part of the text of the statute.' And Sir James Mansfield, in 4 B. & P. 69, says: I do not know how to distinguish this from the case before decided in the court. It is of greater consequence that the law should be as uniform as possible, than that the equitable claim of an individual should be attended to."" And see People v. Cicotte, 16 Mich. 283.

A judgment rendered by a court is authority notwithstanding it was one given under the law of necessity, in consequence of an equal division of the court, Regina v. Millis, 13 M. & W. 261; Durant v. Essex Co. 7 Wal. 107.

Caldwell v. Gale, 11 Mich. 77.