учебный год 2023 / critical years

of Land Law in this state was laid during the Provincial Government. Its leading principles were then settled, partly by the decisions of Courts, and partly by the understanding of eminent lawyers, whose opinions, in many instances, decided and were acquiesced in and received as the law of the land."26 These reports, in common with other early reports, are note- worthy for the absence of formal opinions and the presentation of arguments of counsel as the substance of the reports.

The lack of a system of precedents, in the English sense, as well as any idea of stare decisis can be illustrated by a few

representative decisions.27For instance, in Winchester's Lessee v. Tilghman (1772), the court notes that legal reasoning should start with the general principle, and apply that principle to the particular case.28This search for general principles, rather than for cases on "all fours," appears to be removed a considerable distance from the doctrine of stare

decisis.

In the same year the reporters note a singular case that questions the very competence of the court and also indicates the lack of the concept of stare decisis. In the case of Nicholson

v.Sligh (1772), they say that "it appears, from the notes of T. JENINGS,Esq., who was counsel in this cause, and of W. COOKE,Esq. that the Justices present being at a loss to determine the points, desired that the opinions of some of the

gentlemen of the bar not engaged in the cause, might be taken; and thereupon the whole matter was referred to JAMESHOLLYDAYand THOMASJOHNSON, Esquires, who were both of the

opinion that the fieri facias ought to be quashed, assigning for the reason of their opinion, that unless the debtor shewed

law and usage of the province, having regard to the former precedents. In defect of such law, usage, or precedent, the case shall be determined according to equity and good conscience not neglecting (so far as the judge shall be informed thereof, and shall find no inconvenience in the application to this province) the rules by which right and justice useth and ought to be determined in England."

281 Har. & M'Hen. 452, 453.

38 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 3

his effects, the creditor could only proceed to execute the fieri facias at common law, and it not appearing that the debtor had done this, the proceedings were erroneous."29 The authority relied upon, although generally the common law, was the authority of these two eminent members of the bar, and not any cited prior decisions.

Throughout the second volume of Harris & M'Henry re- ports, there is considerable citation of English cases, but it

appears clear that there was no concept of "binding authority" behind it. Cases and writers are cited in conjunction and with equal abandon. Indeed, the citation of cases appears to rest as much on the authority of the particular judge as on the decision itself. With a better trained bench and bar a system of

precedent became effective, but that is all.

The sad state of the Maryland reports can be seen from Belt v. Belt, a 1771 case, where, from the argument of Jenings for the appellee, we find the statement that "A manuscript case is relied on, to which I give no credit. 1st. Because the authorities in the books, viz. Carth. 514. 2 Stra. 1255 are expressly contrary, and it would be dangerous to overthrow solemn resolutions by loose notes. 2nd. Because Lord MANSFIELDhimself, in the cause of Windham v. Chetwynd, has declared a different doctrine, and acknowledges the case in Carthew to be law." 30 Two things are worthy of note in this quotation. First there is the matter of the unreliability of the

"manuscript" case. Second, and equally important, it should be noticed that Mansfield is cited, rather than his case. It

appears that the case merely provides a medium for the expression of the opinion of that eminent jurist. The inference is

clearly derivable that the case is inferior to Mansfield as an expositor of the law. Under a doctrine of stare decisis it would

appear that it would be preferable to have Mansfield be in accordance with the law and if he is not, to reject Mansfield

rather than the case.

It might seem, from Toogood v. Scott, a 1782 case, that the beginnings of stare decisis are starting to take root when Chase, arguing for the appellee says that "the determination in the case of Butler v. Boardman (September term, 1770),

291 Har. & M'Hen. 434, 437.

301 Har. & M'Hen. 409, 418.

is to govern; if not, much confusion and inconvenience will be introduced."31 That this is not stare decisis, however, but rather a doctrine of abiding by precedents can be seen from

the 1821 case of Hammond v. Ridgely's Lessee, where the opinion by Chase, Ch. J., after setting forth the policy that

principles established by court decisions should be followed states: "But I cannot perceive why on any principle either of law or policy, an opinion of any court should be deemed of binding authority when the foundation of that opinion is taken away. It is the principle that should govern, the substance and not the shadow. Sound policy does indeed require, that principles laid down, and acted upon by courts of last resort, should not be lightly shaken, as it is to established principles, and not to isolated opinions, that parties look in making their contracts. But when the assumed principle of an opinion in any case has been annulled, the opinion should fall with it, and the subject matter be made to rest upon the settled rule governing all other like cases." 32

By 1851, however, Maryland was prepared to accept a prior decision even though it was distasteful. In Milburn v.

State of Maryland,33the court admitted that it believed the lower court was in error in its ruling on a certain point of evidence and felt they were sustained by Greenleaf on Evi- dence. However, they said, the authority of a prior 1814 case concluded the question.

Pennsylvania is another state that has salvaged some of

its pre-Revolutionary cases-thirty-three, according to Dallas.34 These cases were not copied by Dallas from any prior reporters, but were obtained from the records of private individuals.

A 1768 case35 shows a certain divergence from common law, for in that case usage was decided to have overcome the English necessity for separate examination of femes covert

only three years old on the basis of the citation of eminent text authorities and two other cases.

331 Md. 1, 13.

341 Dall. 29.

35Lloyd v. Taylor, 1 Dall. 17.

decision and, if it deems it necessary, overrule it. In other words, as long as a court can ignore a prior decision, it is in

actuality following the theory of finding the law from principles set forth in or derivable from decided cases, and is not treating the cases themselves as binding. If that hypothesis is true, Pennsylvania as late as 1821, in the case of Bevan v. Taylor,38 was wavering in its attitude toward stare decisis. In that case Judge Duncan chose to consider the prior 1803 case of Walker's Adm. v. Smith 39 as of no authority. His reason was excellent and well-founded, because that prior decision followed a principle deemed to be incorrect, and was never in the public eye until the publication of Yeates' Reports and Judge Yeates, who had decided the earlier case, had himself followed a contrary principle in a subsequent case.40

By 1853, however, it appears that Pennsylvania was in the camp of the ardent followers of stare decisis, for in McDowell v. Oyer, the court stated that "it is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself

from absurdity, not mischievous in practice, and consistent with one another, are the law of the land. It is this law which we are bound to execute, and not any 'higher law', manufactured for each special occasion out of our own private feelings

and opinions. If it be wrong, the government has a department

whose duty it is to amend it, and the responsibility is not in any wise thrown upon the judiciary." 41 Here the law, though

it be wrong, is to be followed. Remedial action is to come from the legislature.

Cases from the State of Georgia also address themselves to this matter. As early as 1808, in the case of Grimball v. Ross, we find the court stating that "precedents are not wanting either in the federal or state jurisdictions, to prove that the judicial department possesses, and has actually exercised, the

38 7 S. & R. (Pa.) 397.

393 Yeates (Pa.) 480.

40Shippen v. Izard, 1 S. & R. 222 (Pa., 1814). 41 21 Pa. 417, 423 (1853).

I have here no access to books, and therefore will not venture to state from recollection, the principles upon which each case was decided. My mind is satisfied with throwing out these general, and perhaps they may be called desultory, observations, which convey, on this part, my opinion as strongly as I can express it." 42 The opinion is of interest not only because

of the sympathy it arouses in the breast of a modern lawyer for the difficulty of practice under primitive conditions but also

because it illustrates the fact that despite such conditions decisions must be made. The sources of law in such a situation

are diffuse if not undefinable. One can be happy that the point involved was one of breadth, and did not depend on narrow factual differences.

By 1819, however, it appears that prior decisions were used and books were available, for in Moss v. Wood,43the court indicated that English authorities prior to May 10, 1776, would be taken as Georgia law to the extent they prevailed in Georgia at that time.

It is interesting to speculate on the developments that might have taken place between that time and December 9, 1858 when an unusual statute was passed. The Georgia Act44 of that date read as follows:

"AN ACTto make uniform the Decisions of the Supreme Court of this state; to regulate the reversals of the same, and for other purposes.

"Sec. 1. Be it enacted, that from and after the passage of this act, the decisions of the Supreme Court of this State, which may have been heretofore, or which may hereafter be made by a full court, and in which all three

of the judges have or may concur, shall not be reversed, overruled or changed; but the same are hereby declared to be, and shall be considered, regarded and observed by all the Courts of this State, as the law of this State, where they have not been changed by the legislative enactment,

as fully, and to have the same effect, as if the same had been enacted in terms by the General Assembly."

42T. Charlton Rep. 1805-1810, 175, 177-178.

43R. Charlton Rep. 1811-1837, 19.

44Act No. 62 of 1858.

4528 Ga. 597.

46The Georgia Code of 1861, pt. 1, tit. 5, ch. 2, art. I, sec. 210, provided as follows: "A decision concurred in by three Judges cannot be

reversed or materially changed, except by a full bench, and then after argument had, in which the decision by permission of the Court is expressly questioned and reviewed, and after such argument the court in its decision shall state distinctly whether it affirms, reverses or changes such decision." The provision last appeared in the Georgia Code of 1882. A strict application of the statute can be found in Shaw v. State, 60 Ga.

246, 253 (1878).

greater uniformity in our decisions. We would not be

understood, however, as refusing to hear argument, in cases where counsel might ask permission to review a decision; but we do mean to say, that until a decision may be reversed or materially changed; as provided for by the Code, sec. 210, that it is evidence, conclusive upon us, of what the law is." 47

This, of course, may merely be a public way of educating the bar in the proper methods of case presentation. It appears, distinctly, to have been a decision following the statute requiring courts to adhere to prior decisions, but the judge expresses no reluctance in enunciating the rigors of the doctrine. In addition, it is interesting to note the Georgia statute of around the same time48 which forbade reporters to give more than a memorandum of the lawyer's arguments. That practice of

reporters indicates the interest of the professional readers of reports, and tends to show that the lawyers were more

interested in the arguments of counsel than in the opinion of the judge. The statute, however, exalts the opinion of the judge and relegates the arguments of counsel to a minor position.

New York, never a state to be ignored, has conspicuously little to say on this subject, but its very silence may be con- spicuous enough. The preface to the first volume of Johnson's New York Cases, covering decisions in the Supreme Court of Judicature for the years 1799 to 1800, confesses that prior

reports and prior cases are unreliable in text, but goes on to extol the virtues of New York decisions over those of the

English courts, thus exhibiting some veneration for precedent. In the cases reported by Johnson, the common law is cited from the earliest to the latest reported decisions. Indeed, in

Jackson, etc., v. Woods,49a 1799 case, the court spoke of certain English opinions as having governed as authority even before the Revolution. On the other hand in the 1800 case of Goix v.

Low, the court states that "the opinions of Lord Mansfield merit, and will always command a respectful attention; but at a period when they cease to be binding as authority, I can

4734 Ga. 499, 501-502.

48Contained in Ga. Code of 1861, pt. I, tit. 5, ch. 2, art. III, sec. 222.

491 Johns. Rep. 163.

legislative capacity. Few assign any reasons, and fewer still give written opinions which may be reported." 53

In this statement Senator Platt saw clearly that the condi- tions precedent for a system of precedents did not at that time exist in New York. Not the least of the reasons was

the lack of formal decisions, a condition which, up to the beginning of the 19th century, was common in the American colonies and states.

By 1820, however, in Gibbons v. Ogden, it appears that the doctrine of stare decisis had found firm ground for the court there states that "it would be trifling with the rights of individuals, and highly derogatory to the character of the court, if it were now to depart from its former deliberate decision on the very same point," 54 in that way following an 1812 case. By the 1850's it is clear there is no question concerning the applicability of the doctrine of stare decisis.55

Kentucky, if one can so interpret an 1807 statute,56 was guilty of a heavy animus against English law, for by that statute it forbade the reading or considering as authority in any of its courts of reports and books of adjudged cases from Great Britain after July 4, 1776. The statute, however, provided the occasion for an 1808 case to set forth the opinion

of one Kentuckian, Judge Trimble, on the position of cases as authority. In Kickman v. Boffman, in answer to the argument that English books could nevertheless be cited as evidence of what the law is, he stated, that "if the book is not to have credit as law, it cannot have credit for what the evidences

of the law contain. The legislature

entirely to prohibit the use of these books in court; and thus, to cut off the importation of them." 57The first clause of his

statement is open to the interpretation that perhaps he was willing to give a case credit "as law." If so, there was more

to GRAY, The Nature and Sources of the Law, 245 (1927). 57Hardin, 348 (Ky. 1808).