учебный год 2023 / critical years

1959 PRECEDENTAND STARE DECISIS 47

than a germ of the idea of stare decisis in his thinking. The early capture of Kentucky by stare decisis can, however, be seen more clearly in the 1828 case of South's Heirs v. Thomas's Heirs,58 where it was indicated by way of a dictum that the law must be stable, though wrong.

The cases in this period from the Commonwealth of Massachusetts appear to have little to say on the subject of the nature and sources of the law. It appears, by 1804,59 that the courts were willing to follow the ratio decidendi of decided cases. It also appears, however, that the judges were quite willing to pick and choose among prior judges, for in Martin v. Commonwealth et al., decided in 1805, the court

states, concerning pre-Revolutionary judges, that "these judges, though as men, of great consideration and respecta-

bility yet, had no pretension to that legal knowledge which judges in the last resort ought to possess." 60

It is difficult to obtain a series of cases indicating any

growth pattern from other jurisdictions. On searching court decisions one can find casual references here and there to

the use of precedents, but there is, in general, such a variation of standards in the application and use of precedents that any attempt at an ordered analysis is defeated.

One typical problem that arises concerns the question of how courts treat prior decisions with which they disagree.

It would appear that the doctrine of stare decisis requires that a court consider prior decisions and then choose whether to follow, distinguish or overrule them. Merely to ignore a prior decision is hardly to heed the summons of the policy of stare decisis. This question arises in the 1851 case of The Genesee

Chief, etc., v. Fitzhugh et al., which clearly recognizes the distinction between prior cases that settle rules of property and those that do not by stating that "if it had [settled a rule

statement appears to put the court in the camp of those who follow stare decisis. The remainder of the decision, however,

5823 Ky. (T. B. Mon.) 59.

59Commonwealth v. Hutchinson, 1 Mass. 7.

60 IMass. 347, 387.

61 53 U. S. 443, 458.

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casts doubt on the fullness of their allegiance, for the opinion continues by speaking in terms of refusing to perpetuate error, and not in terms of overruling. If, by refusing to perpetuate error the court had in mind merely to ignore prior decisions, they were not in line with current thinking concerning stare decisis. If, on the other hand, they had in mind an implied

overruling, they were thinking of something that was often to be done even in the halcyon days of stare decisis.

Another difficulty is concerned with the cryptic comment type of statement. For instance an 1851 Alabama case stated

that "a rule that has become settled law is binding upon the courts, and is to be followed." 62 Once again the inference to be derived is not at all clear. Where, as in that case, a group of cases is cited in support of the proposition in question the court might be referring to the law as evidenced by that group of cases. On the other hand it would not be at all illogical for them to be referring in general terms to the idea that they might follow a single decision as binding authority.

There was even some difficulty in convincing lower courts to follow decisions of their appellate courts. For instance an inland state, Illinois, said in 1839 that "the doctrine, before this decision, was considered well settled, that when the supreme judicial tribunal of a State had declared what the law was on any point, when the same point came again in litigation, all other courts were bound to conform to its decision."63 This, of course, sets forth the operation of a hierarchy of courts and indicates that it is the duty of lower courts to follow the law as set forth by their superior courts.

This court indicated that the court below had presumed to "reverse" a decision of the Supreme Court of Illinois and castigated that action as "subversive of the fundamental prin- ciples of the government." 64 This basic fact established, the court went on to state that "erroneous decisions ought not to prevail," but that corrective power lay only in the highest court.

In stretching out toward the western states, whose judicial experience is considerably shorter than that of the states

62Martin's Executrix v. Martin, 25 Ala. 201, 210.

63Field v. People, ex rel. McClernand, 3 Ill. (2 Scam.) 79, 98.

64Ibid.

1959 PRECEDENTAND STARE DECISIS 49

bordering the Atlantic Ocean, another problem is encountered. These courts, while living in an atmosphere of precedent follow- ing carried with them to the frontier, were undoubtedly faced with the fact that some of their own early decisions were improperly considered and wrongly decided due to the lack of learning of their judges and lawyers. California, considering this problem in 1858,65stated that the doctrine of stare decisis was not for the purpose of protecting a new innovation against a settled principle. Iowa, in 1854,66 came to the conclusion that a rule or principle should be followed, but if it was "palpably" wrong it should be overruled. The question that comes to mind in reading such opinions is whether they were following the older doctrine that cases are mere evidence of the law, or whether they desired to follow a doctrine of binding authority of case law, but found it inconvenient due to the primitive state of their own early decisions.

It appears that the idea of cases as somewhat less than binding lingered a little longer in the west than in the east. One interesting example of this comes from the 1856 Ohio case of Leavitt and Lee, Executors, v. Morrow, where the court

says:

"But mere precedent, alone, is not sufficient to settle and establish, forever, a legal principle. Infallibility is to be conceded to no human tribunal. A legal principle, to be well settled, must be founded on sound reason, and tend to the purposes of justice. The maxim communis error facit jus, has a limited application. Otherwise, it could never be said, that law is the perfection of reason, and that it is the reason and justice of the law which give to it its vitality. When we consider the thousands of cases to be pointed out in English and American books of reports, which have been overruled, doubted or limited in their application, we can appreciate the remark of Chancellor Kent in his commentaries, vol. 1, page 477, that 'Even a series of decisions are not always evidence of what the law is.' Precedents are to be regarded as the great store-

65Aud v. Magruder, 10 Calif. 282.

66 Lemp v. Hastings, 4 G. Greene 448 (Ia., 1854). See also Pratt v. Brown, 3 Wis. 603 (1854), which chose not to follow a prior decision of its predecessor court.

Following this explanation of his attitude, he proceeded to criticize the original English report of a cited case as being inaccurate.

This case was decided and the opinion written while the neighboring older state of Pennsylvania was already holding to the doctrine that a case should be followed, even though wrong.68In a very real way the opinion here expressed reflects what a Pennsylvania judge might have said thirty years before.

Nevertheless this short survey of most of the American cases dealing with the doctrine of stare decisis between the years 1800 and 1850 brings out certain salient facts. One may summarize by saying that it can be established that American cases, up to the year 1800, had no firm doctrine of stare decisis. By 1825 some of the older states had come to a firmer stand on the authority of prior cases, and by 1850 this stand was solidified. In the meantime the states in the process of forma-

tion to the west were going through a like experience although the process took, perhaps because of the example of their older brothers, a shorter period of time. When we get to the newer states, such as Oregon, the process of growth is no longer necessary, for they could adopt their attitudes in toto from the older states.69 Wisconsin, for instance, reached a settled position which was the equivalent to that of the eastern courts by 1862.70

The formative period of the doctrine, therefore, was in the years from 1800 to 1850.71This is roughly the period during

676 Ohio St. 71, 72.

68See note 41, supra.

69State v. Clark, 9 Ore. 466 (1881), stands for the proposition that stare decisis is the policy of the Oregon courts and is not to be abandoned unless the prior case is "contrary to principle."

70Kneeland v. Milwaukee, 15 Wis. 691.

71 No mention is made of the application of stare decisis in the period 1850-1900. It is suggested, however, that after a period of rela- tively mechanical application of the doctrine, the current American

1959 PRECEDENTAND STARE DECISIS 51

which the English doctrine was formed although, it might be contended, the English doctrine reached final form somewhat later than the American. In both cases, however, the theoretical statement of prerequisites for stare decisis set forth by Holdsworth are borne out. The basic system of case law being the same, this result is not particularly surprising.

There is, however, a significant difference in the current application of the doctrine of stare decisis between the English and American courts. This difference lies in their attitude toward past cases. It is demonstrable that the English courts, today, have a much greater sense of the authority of precedent than do the American courts.72They tend to speak of decided

cases as constituting "binding authority." On the other hand such an application of the doctrine is virtually unworkable.

Granted one's dual allegiance to such a doctrine and to the principle that cases should be decided with justice in mind, the only possible compromise between the two goals in difficult cases is to resort to the practice of distinguishing prior cases. This, it appears, is what is done by the English courts.

The American courts, on the other hand, are prone to overrule rather than distinguish prior cases, even when they

might be distinguished on a legitimate point. The practice of distinguishing cases rather than confronting them is one that is distasteful to American judges.73

At this point the distinction between cases as "evidence of the law" and as the "law" itself becomes something less than usable. If cases are mere "evidence of the law," there is no particular need to confront them and, when they are unworkable, overrule them. They can be ignored, criticized and the like, without the need for expressly getting them out of the way. On the other hand if cases are the "law," the English doctrine is correct, and cases cannot be overruled. The

view started to develop at approximately the beginning of the twentieth century. See, GOODHART,"Case Law in England and America," 15 Corn. L. Q. 173, 180 (1930).

72 CARDOZO,The Nature HART,op. cit., supra, note 71.

73Paul et al. v. Davis, 100 Ind. 422 (1884), expresses this view in strong terms. It also adheres to the view that cases are merely evidence of the law.

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remedy, in such a case, lies solely with the legislature to change the law by statute.

The American courts, therefore, appear to take a middle

stand which, while stressing the authority of precedent, never- theless treats prior cases as, in a way, prima facie correct. We appear to believe that while the judges "make" the law, they can remake it from time to time.74

The last question to be confronted is the extent to which our modern methods of argumentation and decision writing

differ from their colonial and eighteenth century predecessors. In results, at least, we are not too far from them. Our modern

methods provide room, as did the earlier theory, for the influence of ideas that do not have their sources in prior cases. Both methods test prior decisions by relating them to current developments. In a sense, then, we are closer to the bar of the eighteenth century than are the English courts and lawyers.

The colonial and eighteenth century bar was not willing to restrict itself to the common law of England, if for no other reason than the fact that colonial conditions were different. Indeed, it would have been astounding had they slavishly imitated the law of the mother country.75 That they did so at all might be attributed to the almost pathetic fact, as put

by Ronald, Esq., in his argument in Ross v. Poythress, that ". .. we are to take as our guide, the rules and principles of

the English law, (as we have none other to follow)

But since they believed that decisions were mere evidence of the law they could adopt as law their notions of the law of

74CARDOZO,op. cit., supra, note 72, at 149-150; VONMOSCHZISKER, "Stare Decisis in Courts of Last Resort," 37 Harv. L. Rev. 409 (1924).

75This may be attributed, at least in part, to the fact that "The

earlier colonists had little contact with the central common law courts

in England, and brought little if anything of English law with them." POUND, "The Development of American Law and its Deviation from English Law," 67 L. Q. Rev. 49, 55-56 (1951).

76 1 Wash. 120, 121 (Va., 1792). Compare the much earlier statement from Giddings v. Brown, County Court, Essex County, 1657, 2 Hutchinson Papers 1, found in HOWE,Readings in American Legal History, 232 (1949), where it is stated, "Let us not (here in New Eng- land) despise the rules of the learned in the lawes of England, who have both great helps and long experience."

attitude of the American courts toward stare decisis at least in part to our vast reporting mechanisms that flood the profession with a multitude of decisions.

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modate our thinking when reading the older cases. Because of their inadequacies in research sources, and in the training of their bench and bar, we must expect to see them ignore and discount prior decisions because of unreliability, uncertainty,

inconvenience, bad logic, inapplicability and unjustness. Their use of cases can no more be scrutinized in the light of twentieth century methods of research and analysis than one can expect to see a perfect image through a pane of colonial glass. On the other hand we have been successful in retaining some of their ability to view prior cases as something less than immutable.

The analysis suggested by Holdsworth, therefore, appears to be valid when applied to American courts as far as his second and third factors are concerned. Our present attitude

was conditioned by the physical factors of a hierarchy of courts and reliable reports. On the other hand we are equivocal on the

question whether cases are evidence of the law or the law itself.

Indeed, it is a question we do not particularly like to answer, because it presents a choice between two alternatives, neither of which is entirely satisfactory. We may say, however, that while our predecessors appeared clearly to adopt one of these two alternatives, present thinking chooses not to use those terms, and, to that extent, to leave the issue undecided. The current American application of stare decisis enables us to look at the law as a moving instrument, changing with the

times. By making use of our superior organization we can take advantage of the wealth of thinking that has gone into prior cases. By ignoring the question whether we are bound or free from their effects, we can act in accordance with the requisites of the case before us.