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STARE DECISIS.

BY HON. DAVID E. BAILY, OF OLYMPIA.

"The Court awards it, and the law doth give it."
Shylock vs. Antonio, 2 SHAKESPEARE, 171.

Mr. President and Gentlemen of the State Bar Association :

How far the doctrine of stare decisis should obtain; how far it should be deemed conclusive; how far binding on our Courts, have been mooted questions among the most profound and learned jurists, "time whereof the memory of man runneth not to the contrary."

On the one hand are those who contend for its strict observance; who urge, and with force, the certainty which should attend the interpretation and administration of all law; the necessity of having some fixed principles by which men in their multifarious transactions should be regulated and governed; the rights which have grown up under it; the security that men necessarily demand, not only for the present, but the future; and they, the strict constructionists, urge, when any infringement of it is threatened, in the language of the celebrated case, with an excerpt from which we have headed this paper, (the only case by the way that we propose to cite herein):

"It must not be; there is no power in Venice

Can alter a decree established;

"Twill be recorded for a precedent;

And many an error, by the same example,

Will rush into the state; it cannot be."

Or, the similar language of Sir William Jones: -"No man who is not a lawyer would ever know how to act; and no man who is a lawyer, would in many instances know what to advise, unless Courts were bound by authority as firmly as the Pagan deities were supposed to have been bound by the decrees of fate."

Then, on the other hand, are those who as honestly and as forcibly urge a liberal construction of the doctrine; who say the law should be no Procrustean bed; that times change and men change with them; that the wants of today are not those of yesterday; that the conditions of one decade differ widely. from those of another; that we cannot have the wisdom in the arrangement of human affairs that governs the universe; that we are learning day by day and from year to year; that the knowledge of one generation is laughed to scorn in the next; and that to adhere too strictly to past precedents and decisions is but to check all progress, and all too frequently make the word "law" a byword and a reproach.

In the brief time allotted me I propose to examine this doctrine from both these standpoints; to do so hastily it may be, yet none the less candidly and honestly; leaving you, Gentlemen of the State Bar Association, to draw your own inferences and form your own conclusions as to which is the better vantage ground, and to which side our Courts should lean in determining the many and often most important questions submitted to them for investigation and decision.

As all lawyers know, the first written decisions of the common law which have come down to us were the Year Books, begun in the reign of Edward II. and continuing down to the reign of Henry VIII.; a period of about two hundred years. They were then discontinued by reason of a failure to provide a fitting compensation for payment of those whose duty it, was to report cases arising and judicially determined. The task of reporting was then taken up by private lawyers for their own private practice, or perhaps publication.

Dyer's Reports; Plowden's Commentaries; Coke's Reports; Hobart's Reports; Croke's Reports, and those of Yelverton and Chief Justice Saunders, followed in nearly the order named, although some of them were nearly or quite contemporaneous. We will not further pursue the list, but conclude with the last, and perhaps the best; although we may say of all of them, with my Lord Bacon, in speaking of Coke's Reports, that though they had extra-judicial resolutions, they did contain infinite good decisions," that is, for the day and times, for which they were rendered. The practice of appointing

reporters as officers of the Court, after the Year Books, was, we believe, of American origin, although upon this we do not speak ex cathedra.

The Year Books, with the reports we have mentioned, may be considered the principal source of the common law—the bases of the doctrine of stare decisis. And we may infer from legal history that the precedents then established and the principles then laid down, particularly in the Year Books, were supposed to be almost invulnerable; for we are told that, "throughout the whole period of the Year Books the judges were incessantly urging the sacredness of precedents, and that a counsellor was not to be heard who spoke against them * * * * * 'If we judge against former precedents,' said Chief Justice Prisot, 'it will be a bad example to the barristers and students at law, and they will not give any credit to the books, or have any faith in them.' * * * * *The inviolability of precedents was thus inculcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period.

The reports we have named, more particularly the Year Books, were regarded, for that day and generation, as monuments of legal wisdom, and no doubt for that time and under then existing conditions came as near "the perfection of human reason" as man could make them. The decisions contained in them were rendered by men learned in the law, of ripe experience, of unquestioned integrity and of acknowledged ability; yet what lawyer would now cite them as of any binding authority? or who would now think of returning to the old practice with its nice distinctions as to the forms of action; its subtleties of pleading; its legal fictions; its verbose forms of conveyance; its contracted extent of the rules of evidence; its iteration and reiteration; its common counts, and its cumbersome, procrastinating and expensive methods of procedure?

Our modern writers on elementary law inculcate with scarce an exception the great desirability, if not necessity, of clinging to the old principles and precedents.

Blackstone says: "For it is an established rule to abide by former precedents, when the same points come again in litigation; as well to keep the scale of justice even and steady, and

not liable to waver with any new judge's opinion; as also because, the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, has now become a permanent rule.”

Judge Walker, in speaking of constitutional construction, says: "It seems to me that one of the first lessons to be inculcated upon any American mind is to acquiesce in established constructions, until they shall be either ratified or revised by constitutional amendments."

Chancellor Kent, in speaking of this doctrine, says: -"A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case." And again :-"If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a Court of appeal or review, and never by the same Court except for very cogent reasons and upon a clear manifestation of error; and if the practice were otherwise it would be leaving us in a state of perplexing uncertainty as to the law."

Judge Cooley on this subject uses the following language: "In some cases and for some purposes the conclusiveness of a judicial determination is, beyond question, final and absolute. A decision once made in a particular controversy, by the highest Court empowered to pass upon it, is conclusive upon the parties to the litigation and their privies. * * *** The matter in dispute has become res judicata, a thing definitely settled by judicial decision; and the judgment of the Court imports absolute verity. * * * ** It must frequently happen therefore that a question of constitutional law will be decided in a private litigation and the parties to the controversy, and all others subsequently acquiring rights under them in the subject-matter of the suit will thereby become absolutely and forever precluded from renewing the question in respect to the matter then involved. The rule of conclusive

ness to this extent is one of the most inflexible principles of the law; insomuch that even if it were subsequently held by the Courts that the decision in a particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto."

Yet, with all this seemingly decided leaning to a strict construction of this doctrine, some of the older jurists and law writers appear to think it may have been and often was carried to too great an extreme, and thereby justice was defeated and serious wrong done.

Sir Matthew Hale says the common law of England is, “Not the product of the wisdom of some one man or society of men in any one age; but of the wisdom, counsel, experience and observation of many ages of wise and observing men. And again he says, "Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet even in the wisest provisions of that kind, experience shows us that new and unthought of emergencies often happen, that necessarily require new supplements, abatements or explanations." And Lord Mansfield said, "The law of England would be an absurd science, were it founded upon precedents only."

Of our modern law writers, while strongly insisting upon the desirability of certainty and stability in the law, yet their opinions have been strung with many exceptions and much qualification. Blackstone says:-"Yet this rule (of stare decisis) admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly con* * * * * trary to the divine law. For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined."

So, too, Chancellor Kent, after urging the great desirability if not necessity of a strict adherence to adjudged precedents and principles, observes: -"But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are more than one thousand cases to be pointed out

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