учебный год 2023 / critical years

Precedent and Stare Decisis: The

Critical Years, 1800 to 1850

by FREDERICKG. KEMPIN, JR. *

T IS QUITENATURAL,in looking back to early American cases, to be tempted to use the same techniques of analysis that are used in connection with twentieth century decisions. There is general agreement among modern lawyers and judges con- cerning the sources of law, the proper method of argumentation on points of law, and the expected content of written opinions. Today's lawyers and judges are committed, to a greater or lesser extent, to the principle or policy of stare decisis as the guiding light of legal research, argumentation and opinion

writing.

In viewing early American law, therefore, modern lawyers are quite prone to assume, without conscious thought, that the approach of eighteenth century lawyers and modern lawyers to legal problems is identical. If this assumption is true, American law of a century and more ago appeals as a skein of intertwined ideas that are difficultto rationalize or fully understand.

If this assumption is not true, however, it is necessary to as- certain how our predecessors of the bench and bar viewed the law, and to what authorities they repaired in order to argue and come to decisions.

The modern doctrine of stare decisis as applied in the United States is a general policy of all courts to adhere to the ratio decidendi of prior cases decided by the highest court in a given jurisdiction, as long as the principle derived therefrom is one that is still consonant with reason, was necessary to the decision of the prior case, and was brought to the attention of

* Assistant Professor of Business Law, Wharton School, University of Pennsylvania.

It would probably be granted as a general proposition that reliance on prior experience in general, as in the sense of "custom," as a source of law would be too vague and irregular to constitute a legal system. To rely, however, on prior experiences of the courts in decided cases can well be the basis of a

legal system. This, it might be suggested, is what is done by the use of precedents as guides to decisions. The use of precedents, however, is still distinguishable from the doctrine of stare decisis which may use a single precedent (which is not necessarily the accumulated experience of the courts) as "binding," or persuasive, authority.

In English legal history the distinction between a series of precedents as a source of law and the policy of stare decisis has been made clear by a series of eminent authorities and com-

mentators. T. F. T. Plucknett, for instance, has pointed out that "it is to the nineteenth century that we must look for the final stages of the present system." 4 This, to be sure, indicates that another theory was extant before that time. The prior

theory, again by general agreement of the authorities, was the practice of citing precedents en masse for the purpose of illus- trating to the court the nature of the law on the question in- volved.5 Each cited case, under this practice, varied in impor-

tance, and it may well have been that the cases cited were im- portant not only because they were decided cases, but because

century, but needed the continually improving mechanism of the suc- ceeding age to give it final and definitive form." He then cites the opinion of PARKE, J., in Mirehouse v. Rennell, 1 Cl. & F. 527, which, by way of a dictum, sets forth the modern theory of case law. Even in that case, as Allen notes however, Baron Parke stressed principle rather than the

1959 PRECEDENTAND STARE DECISIS 31

they reflected the beliefs of the particular judges involved on the state of the law.6

The reason for the late development of stare decisis in England lies in the fact that there were certain conditions precedent to its full development. To put the matter another way, stare decisis did not develop in England because of conditions which prevented its full development. These condi-

tions, as far as English law is concerned, were suggested in a 1934 article in the Law Quarterly Review by W. S. Holdsworth.7 The reasons given were somewhat as follows:

1. English law has classically operated on the theory that cases are not law, but rather only the best evidence of what

law is.8

2. The authority of the reporters of cases, not being officially appointed by the courts, was such that the reported cases could be discounted by judges on the basis of inaccuracy, inade-

quacy, or unintelligibility.

3. The English court system to the middle of the nineteenth century was such that conflicting decisions could and

did exist side by side.

4. That law is not precedents, but general principles. The fourth reason may be disregarded for, as Goodhart

pointed out in his article, it is virtually indistinguishable from the first. The other three reasons, however, require examination.9

judges who cite precedent [in the eighteenth century and before] nearly always take pains to call attention, not merely to the fact that the precedent was there, but to the eminence of the judge who created it."

7HOLDSWORTH,op. cit., supra, note 4, at 180 (1934). See the general comment thereon by GOODHART,"Case Law, A Short Replication", 50 L. Q. Rev. 196 (1934).

8That this theory is inimical to the authority of precedent is strongly

maintained by POPE,"The English

24 Harv. L. Rev. 6, 12 (1910), who stated that "in short, the acceptance

and application of the common-law principle of the authority of precedent in a given jurisdiction eats up and destroys the theory that the decisions of the courts are only evidence of the law."

9 Support for all these statements can be obtained, generally, from the third and fourth chapters of ALLEN,op. cit., supra, note 4. Allen falls into difficulty in attempting to show that the application and use of case

It is undoubtedly true that decisions were, according to all the old English masters, deemed to be mere evidence of the law and not the law itself. The attacks of Jeremy Bentham on this theory, and the earnest pages of Austin, indicate the power that it held over the minds of lawyers. Blackstone, himself no

despiser of precedent, after extolling the general principle of following prior cases, was careful to exhort his readers that

". . this rule admits of exception, where the former deter- mination is most evidently contrary to reason: much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation." 10

It is likewise true that reporters were of varied reliabil- ity until the nineteenth century in England. Allen can be cited

on this proposition. In the sixteenth century he gives high praise to the reports of Coke and Plowden, and in the seven-

teenth century to the reports of Saunders.1l Some reports, he states, were forbidden to be cited in certain courts, however.12

It is likewise accurate that the jurisdiction of English

courts, up to the nineteenth century, overlapped, until order was installed by means of the Judicature Act of 1873 and the

Appellate Jurisdiction Act of 1876. Allen gives copious evi- dence of the resulting conflicting decisions.13

These factors, that cases are only evidence of the law,

law was the same over the long period stretching from the time of the Year Books to the nineteenth century. As a result he is inclined to refer

to actual facts as aberrations from theory. For instance, while he con-

tends, at 339-340, that "the only proper use of precedents is to establish principles," thus indicating that prior cases may be ignored, he must cope with the fact, as he does at 334-336, that in England the House of Lords and the Court of Appeal still feel bound to follow their own prior

decisions. He apparently believes that the majority of the English bar would not particularly view the American approach of "dissenting" from

prior decisions with approval, and refers to that majority as to the "orthodox," as distinguished from those who approve the overruling of

cases who referred to as the "latitudinarians." He is, apparently, a

qualified latitudinarian with reservations of an orthodox nature.

10 I Bl. Comm. 69. BLACKSTONE,according to RADIN, op. cit., supra, note 6, at 18, is one of the first writers to speak "of the rule of precedent

as one of general obligation."

11Op. cit., supra, note 4, at 216. note 4, at 217.

note 4, at 297.

1959 PRECEDENT AND STARE DECISIS 33

that reporters were unreliable, and that there was no hierarchy of courts, militate against anything resembling a strict doctrine of stare decisis. They are consonant, to be sure, only

with a shotgun spattering of precedents by which one hopes to overwhelm the court with authority from these evidences of what the law is. If reporters are inadequate, can their reports reflect the true evidence of the law? If the decisions of courts conflict, which decisions are to be adopted as the law?

The object of this investigation is to determine to what extent, if any, the analysis of Holdsworth is accurate when applied to early American law. If it is accurate then our early courts, as well as the English, had no firm doctrine of stare decisis. If it is accurate, our courts could search for the "true" law without regard to any binding authority in prior cases for, indeed, cases were but evidence of the law. The question of the source or sources to which the early lawyers and judges looked in their quest for law is important, for if a body of colonial law is ever to be found, or recreated, it must be in accordance with the overriding theory on which the colonists operated in deciding what the law was.

It is doubtless true that the common law was viewed, by the colonists, as something other than and apart from decided cases. It may well be that decided cases were believed to con-

tain evidence of the law, and this can be seen by reference to a few different sources.

Material from the colonial period is scanty, it is true, but tends in the direction of showing that the colonists believed the law to be something above and superior to cases. The 1657 case of Giddings v. Brown,14while stating that the "rules of the learned in the laws of England" should not be despised, nevertheless reminds the reader that if that law is repugnant to fundamental law, it is void. This view persisted into the nineteenth century, for Chancellor Kent, in his Commentaries, written in the third decade of that century, relates that "Even a series of decisions are not always conclusive evidence of what

be difficult to convince a judge of the immutability of prior de- cisions.

As is well known, the famous 1842 decision in Swift v. Tyson 16 establishing a federal common law was based on the

concept, which a subsequent generation took to be incorrect, that there is a transcendental body of law above and outside of

the law of any state to which reference must be made. It can-

not quite be claimed that even the voice of Erie R. R. v. Tomkins 17 has entirely stilled this dogma,18for we must still contend with the problem of the effect of an overruled decision.19

The position of the reports in the American colonies was the same as, or worse than, the position of the English reports.20 While England had some reliable, although unofficial, reports during the 17th and 18th centuries, it is safe to say that the colonists had none until the nineteenth century. During those years lawyers, for their own private purposes, kept notes on various cases within their own jurisdictions. Some of these, for instance those of Bushrod Washington, were published by these lawyers as a type of public service, but not only were these few in number, and late in coming, but they bore only a small resemblance to our modern reports.21While

16 16 Pet. 1, 41 U. S. 1.

17304 U. S. 64 (1937).

18 Modern lawyers are not necessarily free of this idea. See, for instance, the comments of BROWN, "A Trial Lawyer's Plea for Stare

Decisis," 44 A. B. A. J. 742, 743 (1958), where he says that ". . the judiciary merely declares the law...."

19 See, for example, People ex rel. Rice v. Graves et al., Tax Comm'rs., 242 App. Div. 128, 273 N. Y. Supp. 582 (1928), aff'd mem., 270 N. Y. 498 (1936), cert. denied, 298 U. S. 683 (1936). In addition, the question how courts of one state are to use decisions from other states in conflict

of law questions raises policy considerations which, although not dressed in the language of "evidence of law" as against cases as "law" itself,

involve the same basic interpretative questions. See, for instance, PACKEL, "Backward and Forward in Conflicts," 31 Temp. L. Q. 117 (1958).

20Note the remarks of Tucker in his note on pages 71-72 of his edition of Blackstone's Commentaries (1803), where he observes the few

we attend assiduously to the exact written opinion of the judge or judges, these reporters were interested almost entirely in

the arguments of counsel. The decisions of the courts were given, and, in some cases, a memorandum of the opinion of the courts, but nothing that could actually be called a formal opinion. This situation continued to the very end of the eighteenth century, and only in the beginning of the nineteenth century do we find, and then only in the older states, the emergence of formal opinions.22 Formal opinions, however, did become common in the first decade of the nineteenth century.

The earliest of the official reporters appointed by some organ of the state came into existence in the early part of the nineteenth century.23 The movement toward official state reporters gained momentum in the 1840's and 1850's and was

in New York started with cases from the year 1799 to 1800, and sub-

event, the day of the advance sheets and up-to-the-minute case reporting was long in coming. It was not uncommon for reports to be privately

general in Maryland until about 1797, with the third volume of these

authorized after the fashion of the United States Supreme Court. The Act of February 24, 1820, according to Robinson's statement, authorized

made to better the situation by changing the method by which the reporter

shortly universal.24 In England, "the semi-official series of the Incorporated Council of Law Reporting was instituted" in

1865.25

The third requisite for a firm doctrine of stare decisis (that there exist a hierarchy of courts within a jurisdiction) existed on this side of the Atlantic at a considerably earlier period than it did in England. It is true that the principle of a

single source of appellate authority existed from the founding of the union. Even in colonial times it was general for one

highest court to be able to give the last word on a case, subject to the question whether the decision could be appealed to Privy Council. Clearly, with the formation of the federal government the federal Supreme Court was final in its field, and most of the states followed that example.

On a purely theoretical basis, considering these three guides to be a formula leading to an approximate date for the emergence of a firm doctrine of stare decisis, one might conclude that, in the American states, it occurred in the first half of the nineteenth century. By that time reporters were common and relatively stable. By that time a hierarchy of courts existed in all of our jurisdictions, with a supreme court capable of

reversing all other lesser courts. By that time the theory that cases were merely evidence of the law was under heavy attack

by the theoricians.

Evidence from decided cases is not wanting to sustain this

analysis in fact. For this purpose it is best to start with those jurisdictions that have retained in their records the oldest cases. One of them is Maryland, whose earliest reports, cover-

ing the period from the year 1700 to the Revolution, are attributed to Harris and M'Henry.

These reporters, in the introduction to their very first volume, start with a confession that leaves little room for a firm doctrine of stare decisis by stating that "The foundation

24 Robert M. Barr was appointed as Pennsylvania's first official state

reporter in accordance with the Act of April 11, 1845, No. 259, P. L. 374. New York can date its official reporter system back to the Laws of 1847,

c. 280, sec. 73 (see the legislative history of the New York Acts in N. Y.

Judiciary Law (McKinney) Sec. 430). Kentucky provided for its first reporter in its laws of 1851, c. 22, art. VI. Maryland followed suit with

an Act of March 17, 1852.

25 ALLEN, op. cit., supra, note 4, at 224.