The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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The decision of the court in McCulloch _v._
Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby,
"The American Constitutional System," 44, 123.] unquestionably
settled forever, as between the cashier of the bank and the State
of Maryland, that the bank was a lawful institution. That in
Osborn _v._ The Bank of the United States[Footnote: 9
Wheaton's Reports, 738.] reaffirmed it as between the bank and
the Treasurer of the State of Ohio. It would be intolerable if
such judgments were not in effect equally conclusive for the
determination of all controversies between all men and all States
growing out of the creation of such a corporation. Practically,
then, the opinion of the executive department to the contrary
could only be of importance in such a case as Jackson had in
hand; that is, in its influencing executive action in approving
or disapproving some proposed measure of legislation. It could
not disturb the past.

The authority of a judicial precedent is weakened if it comes
from a divided court, and especially if a dissenting opinion is
filed in behalf of the minority. A silent dissent indicates that
the judge from whom it proceeds is not so impressed by the fact,
or the importance to the public, of what he deems the error of
the majority that he thinks it worth while to express the reasons
which lead him to differ from them.

No departure from precedent in any American court has ever
awakened so much feeling as that by the Supreme Court of the
United States in 1872, when it decided that Congress could make
government notes a legal tender for debts contracted before the
law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's
Reports, 457, 529.] It had held precisely the contrary two years
before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's
Reports, 603.] but it was by a bare majority and in the face of a
strong dissenting opinion. In the opinions filed in the second
case stress was laid upon this division of the court.[Footnote:
12 Wallace's Reports, 553, 569. See George F. Hoar,
"Autobiography," I, 286.]

The word "established" is often used to describe the kind of
precedent to which courts are bound to adhere. What serves to
establish one? Long popular usage, repeated judicial
affirmations, and general recognition by approved writers on
legal topics. Of these, in fact, the last is probably the most
powerful. Lawyers and courts, in countries without codes, get
their law mainly from the standard text-books. Such authors as
Coke, Blackstone, Kent and Cooley are freely cited and relied on
as authorities by the highest tribunals.[Footnote: See, for
instance, Western Union Telegraph Co. _v._ Call Publishing
Co., 181 United States Reports, 101; Louisville Ferry
Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It
is by the writings of such men that judicial precedents are
sifted and legal doctrines finally clothed in appropriate terms
and arranged in scientific order.

The English courts long ago declared it to be a rule of law to
prevent perpetuities that no estate in lands could be created
which was not to commence within the compass of a life or lives
of persons then existing, with an exception intended to favor a
minor heir. American courts accepted this rule, but some of them
construed it as meaning that no estate in lands could be created
which was to continue after the expiration of such a period.
This construction was shown by Professor John C. Gray, in a work
on "Perpetuities," to be unwarranted, and since its publication
the cases which had proceeded on that basis have been generally
treated as erroneous.

The nature of a legal presumption, also, had been misconceived by
several American courts. It had been treated as evidence of
facts.[Footnote: Coffin _v._ United States, 156 United
States Reports, 432.] Professor J. B. Thayer, in his
"Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-
575.] argued so forcibly against this view that in at least one
State a decision in which it had been taken has been formally
overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life
Association, 77 Connecticut Reports, 281, 291; 58 Atlantic
Reporter, 963.]

The Court of Appeals of New York once held in a carefully
prepared opinion that a railroad might be built along the shore
of a navigable river, under authority from the State, without
first making compensation to the riparian proprietors, whose
access to the waters might thus be obstructed.[Footnote: Gould
_v._ Hudson River Railroad Co., 6 New York Reports, 522.]
In a text-book written by Chief Justice Cooley, this decision was
justly criticised,[Footnote: Cooley on Constitutional
Limitations, 670.] and not long after the publication of that
work it was formally overruled.[Footnote: Rumsey _v._ New
York and New England Railroad Co., 133 New York Reports, 79; 30
Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.]
It is safe to say that its fate was largely the result of the
comments thus made by a distinguished jurist, whose only motive
could be to maintain the integrity and consistency of legal
science.

The general doctrine of the courts, which is commonly expressed
by the rule "_stare decisis_," was never better stated than
by Chief Justice Black of Pennsylvania, in these words:

When a point has been solemnly ruled by the tribunal of the
last resort, after full argument and with the assent of all the
judges, we have the highest evidence which can be procured in
favor of the unwritten law. 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 a principle of great magnitude and importance....

A palpable mistake, violating justice, reason and law, must be
corrected, no matter by whom it may have been made. There are
cases in our books which bear such marks of haste and
inattention, that they demand reconsideration. There are some
which must be disregarded, because they cannot be reconciled
with others. There are old decisions of which the authority
has become obsolete, by a total alteration in the circumstances
of the country and the progress of opinion. _Tempora
mutantur_. We change with the change of the times, as
necessarily as we move with the motion of the earth. But in
ordinary cases, to set up our mere notions above the principles
which the country has been acting upon as settled and
established, is to make ourselves not the ministers and agents
of the law, but the masters of the law and the tyrants of the
people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports,
423.]

Generally, overruling a former decision is due to a change of
circumstances, which has given the court a new view-point. A
marked instance of this occurred in 1851, in proceedings before
the Supreme Court of the United States. More than a quarter of a
century before, a suit in admiralty for seamen's wages on an
inland river had been dismissed by the District Court of Kentucky
for want of jurisdiction, and on appeal this action had been
affirmed. Mr. Justice Story gave the opinion of the court, and
said that a court of admiralty could only take cognizance of such
a claim when the services were rendered at sea or upon waters
within the ebb and flow of the tide.[Footnote: The Thomas
Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a
true statement of what had always been the doctrine of both
English and American courts. But out of what did this doctrine
spring? From the fact that in England there were no navigable
waters except those in which the tide ebbed and flowed, and that
in the United States, up to that time, there were none of a
different kind which had been largely used for commercial
purposes. Twenty years passed. Steam navigation had opened the
great lakes and the great rivers of the country to a profitable
carrying trade. The day was dawning when the bulk of American
shipping was to be employed upon them. A suit in admiralty was
brought against a ship for sinking another on Lake Ontario. The
defendants put in an answer relying on the doctrine laid down by
Story. The District Court overruled it. The case came by appeal
to the Supreme Court, and in an opinion by Chief Justice Taney
the appeal was dismissed. "The conviction," he said, referring
to the opinion of Mr. Justice Story, "that this definition of
admiralty powers was narrower than the Constitution contemplated,
has been growing stronger every day with the growing commerce on
the lakes and navigable rivers of the western States.... These
lakes are in truth inland seas. Different States border on them
on one side and a foreign nation on the other. A great and
growing commerce is carried on upon them between different States
and a foreign nation, which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have
encountered on them and prizes been made, and every reason which
existed for the grant of admiralty jurisdiction to the general
government on the Atlantic seas applies with equal force to the
lakes. There is an equal necessity for the instance and for the
prize power of the admiralty court to administer international
law, and if the one cannot be established neither can the
other.... The case of the _Thomas Jefferson_ did not decide
any question of property or lay down any rule by which the right
of property should be determined.... The rights of property and
of parties will be the same by whatever court the law is
administered. And as we are convinced that the former decision
was founded in error, and that the error, if not corrected, must
produce serious public as well as private inconvenience and loss,
it becomes our duty not to perpetuate it."[Footnote: The Genesee
Chief, 12 Howard's Reports, 443, 451.]

But without any change of circumstances, the proper desire of all
American courts to keep their common law in harmony with that of
the other States is often sufficient to induce the abandonment of
a doctrine once distinctly asserted.[Footnote: City of South Bend
_v._ Turner, 156 Indiana Reports, 418; 60 Northeastern
Reporter, 271.] The consistency of American law as a whole is
immeasurably more important than the consistency of the law of
any single State.

Sometimes a court of last resort treats a doctrine which it had
formerly asserted as manifestly unsound and abandons it without
stopping to give a reason or even to overrule the decision which
first announced it.

Illinois for a long generation adopted the rule that if an injury
occurred to one man through the concurring negligence of himself
and another, but his negligence was slighter than that of the
other, he might hold the latter responsible for the damages
suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was
not a doctrine justified by the common law nor generally held in
this country, and in 1894 the Supreme Court of the State refused
to recognize it, with little or nothing more than this brief
_ipse dixit_: "The doctrine of comparative negligence is no
longer the law of this court."[Footnote: Lanark _v._
Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter,
892.]

Occasionally a case is overruled because it has been forgotten.

An early decision in Massachusetts (Loomis _v._
Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the
position that if a statute required contracts of a certain kind
to be put in writing, and a contract of that kind, but embracing
also a different and distinct matter not touched by the statute,
was made orally, it was wholly void. Such a rule was illogical
and unsound, and in a later decision the same court, forgetting
that it had indorsed it, said so, and said so when it was not
necessary to the decision.[Footnote: Irvine _v._ Stone, 6
Cushing's Reports, 508, 510.] Subsequently, both these cases
having been brought to its attention, it affirmed the latter,
though remarking that "what was there said on this point was not
essential to the decision of that case, and would have been
omitted or modified if Loomis _v._ Newhall had been then
remembered."[Footnote: Rand _v._ Mather, 11 Cushing's
Reports, 1, 5.]

The authority of an opinion as a precedent on any point is always
proportioned to the necessity of determining that point in order
to support the judgment which was rendered. Some judges write
treatises instead of decisions or in addition to decisions.
Whatever goes beyond that which is required to show that the
judgment is the legal conclusion from the ascertained facts is
styled in law language _obiter dictum_. It may be
interesting and even persuasive, but it is not an authoritative
statement of law.

It may grow to be such by adoption in subsequent cases. The
Court of King's Bench in England was called on, at the beginning
of the eighteenth century, to say whether if a man undertook as a
friendly act, and not for pay, to cart another's goods, and did
it carelessly, he was bound to answer for any damage that might
result. There were four judges who heard the case, of whom three
gave their opinions.[Footnote: Coggs _v._ Bernard, Lord
Raymond's Reports, 909.] Two of these opinions were confined to
the precise point of law on which the case turned. In the third,
Chief Justice Holt seized the opportunity to lay down the law of
England as to all sorts of contracts arising out of the reception
by one man of the goods of another. This he did mainly by
setting forth what were the rules of the Roman law on the
subject, but not referring to their Roman origin, and quoting
them, so far as he could, from Bracton, an English legal writer
of the thirteenth century, who had also stated them as English
law.

For four or five centuries these rules had been laid down in an
unofficial treatise, but the courts had not fully recognized
them. Now the Chief Justice of England had given such
recognition in the amplest manner. Meanwhile the trade of
England had reached a point at which some definite rules on all
these matters had become of the utmost importance. The bar were
only too glad to advise their clients in accordance with Lord
Holt's opinion. It was not long before it was universally
practiced upon, and no case in the English language touching
contract relations of that nature is of greater importance as a
precedent. Yet it became such not because of its intrinsic
authority as a judgment, so much as on account of its orderly and
scientific statement of a whole body of law of a kind that the
people needed and for the origin of which--whether at Rome or
London--they cared little, so long as it had been accepted by the
highest judicial authority in the realm.

On the other hand, the greatest judges have often, in delivering
the opinion of the court, asserted doctrines the consideration of
which was not essential to the decision, and later retracted the
assertion on fuller consideration or seen the court in a later
case retract it for them.

Two of the great opinions of Chief Justice Marshall are Marbury
_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
first the court held that it had no jurisdiction to command the
Secretary of State to deliver a commission executed under the
preceding administration, because, although Congress had assumed
to confer it, Congress had no power to do so; and in defending
this position Marshall observed that the Constitution defined the
jurisdiction of the Supreme Court over cases brought there in the
first instance, and that in this clause of the Constitution
affirmative words had the force of negative words so far as to
exclude jurisdiction over any other cases than those specifically
mentioned. In the second case this observation was relied on by
Virginia to defeat the power of the court to review a State
judgment. But, said the Chief Justice, "it is a maxim not to be
disregarded that general expressions in every opinion are to be
taken in connection with the case in which those expressions are
used. If they go beyond the case they may be respected, but
ought not to control the judgment in a subsequent suit when the
very point is presented for decision.... In the case of Marbury
_v._ Madison, the single question before the court, so far
as that case can be applied to this, was whether the legislature
could give this court original jurisdiction in a case in which
the Constitution had clearly not given it, and in which no doubt
respecting the construction of the article could possibly be
raised. The court decided, and we think very properly, that the
legislature could not give original jurisdiction in such a case.
But in the reasoning of the court in support of this decision
some expressions are used which go far beyond it.... The general
expressions in the case of Marbury _v._ Madison must be
understood with the limitations which are given to them in this
opinion; limitations which in no degree affect the decision in
that case or the tenor of its reasoning." He then proceeded to
dispose of the case in hand by saying that Virginia having
obtained an erroneous judgment against Cohens, Cohens had a right
to appeal, and the suit still remained a suit by a State against
him and not by him against a State. Unfortunately, here again
came in next an _obiter dictum_. If, he said, this were not
so, there was another principle equally decisive in support of
the jurisdiction, namely, that the Constitution gave the United
States judicial power over all cases arising under the
Constitution or laws of the United States without respect to
parties. Nearly a hundred years later a State was sued in the
courts of the United States on a cause of action arising under
the Constitution, and Cohens _v._ Virginia was relied on as
a precedent. "It must be conceded," was the reply of the Supreme
Court, "that the last observation of the Chief Justice does favor
the argument of the plaintiff. But the observation was
unnecessary to the decision, and in that sense extra-judicial,
and though made by one who seldom used words without due
reflection, ought not to outweigh the important considerations
referred to which lead to a different conclusion."[Footnote: Hans
_v._ Louisiana, 134 United States Reports, 1, 20.]

It may be added that decisions on a point not material to the
cause are generally made without the benefit of previous argument
by counsel. The lawyers will naturally address themselves to the
controlling questions, and if well trained will see what these
are quite as clearly as the court. It is the argument at the
bar, in which different views of law are presented and each
defended by men of learning and ability, which enables the judge,
after hearing both sides and weighing all that is said in behalf
of one against all that is said in behalf of the other, to come
to the true conclusion. The Romans recognized this in their rule
as to the force of precedent in a matter of customary law. The
first thing to ask was whether "_contradicto aliquando judicio
consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de
legibus_, etc., 34.]

The retrospective effect which a refusal to follow a former
decision may have in disturbing vested rights being one of the
most cogent reasons for adhering to precedent, there is less
objection to departing from it when the decision can be so
limited as to have only a future operation. This is occasionally
feasible. Thus the High Court of Errors and Appeals of
Mississippi by an early decision held that on the dissolution of
a bank all its rights and liabilities were extinguished. Thirty
years later the Supreme Court of the same State overruled that
decision, declaring it "condemned by reason and the principles of
modern and enlightened jurisprudence," but nevertheless applied
it as a controlling precedent to a case arising out of the
dissolution of a bank which had been incorporated previously to
the time when the original decision was made.[Footnote: 1 Bank of
Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]

The effect of overruling a former opinion may also be limited by
the dual character of our government.

The courts of the United States follow the decisions of the State
courts in the determination of matters of State law. If a State
law is held by the courts of the State to have a particular
meaning and effect it will be accorded the same in the federal
courts. But if a federal judgment is for that reason rendered in
a certain form, and there is no appeal, it settles the rights of
the parties to the suit forever, even should the State courts
afterward reverse their former rulings as being
erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191
United States Reports, 499.]

De Tocqueville, in his estimate of the American bar,[Footnote: 3
"Democracy in America," II, Chap. XVI.] speaks of it as devoted
to investigating what has been done rather than what ought to be
done; to the pursuit of precedent rather than of reason.

In a very limited sense this is true. Where codes are wanting,
former judicial decisions must serve in their place. But it
would be a mistake to suppose that it is a large part of the
business of American lawyers to search out precedents for the
guidance of the courts. Most cases, after any facts in dispute
are once settled, depend on the application of the simplest
processes of ordinary reasoning. No aid from the past is needed
for this and none is to be had. It has been well said by an
English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10
Chancery Appeal Cases, 526.] that the clearer a thing is the more
difficult it is to find any express authority or any
_dictum_ exactly to the point. Nor, if there be one, is it
to be accepted without regard to the circumstances out of which
it arose or the end to be effected by the judgment. A precedent
may indeed be used slavishly, but so it may be used in the free
spirit in which it was conceived. Many an argument at the bar,
however, is ruined by an excessive anxiety to repeat the
_ipsissima verba_ of some ancient opinion, when the soul of
it is the only thing of value. And occasionally courts are
chargeable with pursuing the letter of some of their former
deliverances rather than the spirit which called them forth and
gave them all their vitality.

* * * * *

CHAPTER V

THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW

The English common law was and is an unwritten law. To find it
one has to look in legal treatises and reports of judicial
decisions. Its historical development has been not unlike that
of Rome. In Rome, as in England, there were in early times
written enactments or governmental declarations of standing rules
on but few points. Some of these writings were of special
importance, such as the twelve tables of Rome and the _Magna
Charta_ of England. These were regarded as so bound up with
the very life of the people as to have a place by themselves, and
a superior force to anything to the contrary to which the free
consent of the people was not formally given. But in general
Romans and Englishmen preferred to make custom their law, and to
let this law grow "not with observation," but insensibly from day
to day as the needs of their social organization might be found
to require. It was a wise preference, and founded on a better
philosophy than they knew--than the world knew, until the theory
of evolution was demonstrated by Darwin and applied to
governmental science by Spencer.

A customary law for a people of advancing civilization and power
must expand with corresponding rapidity. There will soon be
disputes as to what it is on certain points and a demand for some
authoritative information as to this. In Rome, the priests gave
it at first, and then the lawyers. In England, the priests never
gave it, as priests. There was no sacred college of law.
Priests took part in legislation. A priest, at the king's right
hand, was his spokesman in doing equity. But it was from the
first the king as a judge, or the king's judges deputed by him
and sitting for him, who settled controverted questions of common
law. For the Roman and for the Englishman the first
representatives of government who could be called judges were
primarily and principally executive officers. The Roman
_praetor_ was not given judicial functions because he had
legal attainments. The _aula regis_ of early England was
composed of the great officers of state. The chief justiciar,
however, soon ceased to be prime minister. His associates on the
bench, as law became a recognized profession, came to be chosen
largely for their fitness for judicial work and to be kept at it
during the king's pleasure. At Rome, on the contrary, the
praetorship remained a political place, held for a fixed term, and
a brief one. Information as to the unwritten law applicable to
any controversy between parties had therefore to be sought from
others. The lawyers could give it; and it was to them, not to
the judges, that resort was had. The opinion of a great jurist
was for Rome what the opinion of a judge was for England. It was
commonly accepted as conclusive not only by the people but by the
courts.

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