« AnteriorContinuar »
how far, and for what reasons, it is expedient to adhere to former determinations; or, whether it be necessary for judges to attend to any other consideration than the apparent and particular, equity of the case before them. Now although to assert, that precedents established by one set of judges, ought to be incontrovertible by their fuccessors in the same jurisdiction, or by those who exercise a higher, would be to attribute to the sentence of those judges all the authority we ascribe to the most folemn acts of the legiflature; yet, the general security of private rights, and of civil life, requires, that such pres cedents, especially if they have been confirmed by repeated adjudications, should not be overs thrown without a detection of manifest error, or without some imputation of dishonesty upon the court by whose judgment the question was first decided. And this deference to prior decis fions is founded upon two reasons; first, that the discretion of judges may be bound down by positive rules; and, secondly, that the subject upon every occasion, in which his legal interest is concerned, may know beforehand how to act,' and what to expect. To set judges free from any obligation to conform themselves to the decisions of their predecessors, would be to lay
open a latitude of judging, with which no description of men can safely be entrusted : it would be to allow space for the exercise of those concealed partialities, which, since they cannot by any human policy be excluded, ought to be confined by boundaries and landmarks. It is in vain to allege, that the superintendency of parliament is always at hand to control and punish abuses of judicial discretion. By what rules can parliament proceed? How shall they pronounce a decision to be wrong, where there exists no acknowledged measure or standard of what is right, which, in a multitude of instances, would be the case, if prior determinations were no longer to be appealed to ?
Diminishing the danger of partiality, is one thing gained by adhering to precedents; but not the principal thing. The subject of every system of laws must expect that decision in his own case, which he knows that others have received in cases similar to his. If he expect not this, he can expect nothing. There exists no other rule or principle of reasoning, by which he can foretell, or even conjecture the event of a judicial contest. To remove therefore the ground of this expectation, by rejecting the force and authority of precedents, is to entail upon the subject the worst
property of slavery—to have no assurance of his rights, or knowledge of his duty. The quiet also of the country, as well as the confidence and satisfaction of each man's mind, requires uniformity in judicial proceedings. Nothing quells a spirit of litigation, like despair of success: therefore, nothing so completely puts an end to law suits, as a rigid adherence to known rules of adjudication. Whilst the event is uncertain, which it ever must be, whilst it is uncertain whether former determinations upon the same subject will be followed or not, law-suits will be endless and innumerable: men will continually engage in them, either from the hope of prevailing in their claims, which the smallest chance is sufficient to encourage; or with the design of intimidating their adversary by the terrors of a dubious litigation. When justice is rendered to the parties, but half the business of a court of justice is done: the more important part of its office remains to put an end, for the future, to every fear, and quarrel, and expence upon the same point; and so to regulate its proceedings, that not only a doubt once decided may be stirred no more, but that the whole train of law-suits, which issue from one uncertainty, may die with the parent question. Now this advantage can only be at
tained by considering each decision as a direction to succeeding judges. And it should be observed, that every departure from former determinations, especially if they have been often repeated, or long submitted to, shakes the stability of all legal title. It is not fixing a point anew ; it is leaving every thing unfixed. For by the same stretch of power, by which the present race of judges take upon them to contradict the judgment of their predecessors, those who try the question next, may set aside theirs. I
From an adherence however to precedents, by which so much is gained to the public, two consequences arise which are often lamented; the hardship of particular determinations, and the intricacy of the law as a science. To the first of these complaints, we must apply this reflection, “ that uniformity is of more importance than “ equity, in proportion as general uncertainty “ would be a greater evil than particular injuf“ tice.” The second iş attended with no greater inconveniency than that of erecting the practice of the law into a separate profession: which this reason, we allow, makes necessary; for if we attribute so much authority to precedents, it is expedient that they be known in every cause, both to the advocates and to the judge: this know
ledge cannot be general, since it is the fruit oftentimes of laborious research, or demands a memory stored with long-collected erudition.
To a mind revolving upon the subject of human jurisprudence, there frequently occurs this question; why, since the maxims of natural juftice are few and evident, do there arise so many doubts and controversies in the application ? Or, in other words, how comes it to pass, that although the principles of the law of nature be simple, and for the most part sufficiently obvious, there should exist nevertheless, in every system of municipal laws, and in the actual administration of relative justice, numerous uncertainties and acknowledged difficulty ? Whence, it may be asked, so much room for litigation, and so many fubfisting disputes, if the rules of human duty be neither obscure nor dubious? If a system of morality, containing both the precepts of revelation, and the deductions of reason, may be comprised within the compass of one moderate volume; and the moralist be able, as he pretends, to describe the rights and obligations of mankind, in