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in the English and American books of reports, which have been overruled, doubted or limited in their application." (If that many in his day, how has the number been multiplied since!) He further says: "It is probable that the records of many of the Courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance. * **** Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it."

And so Judge Cooley, with all his trend toward conservatism, says:The doctrine of stare decisis however is only applicable in its full force within the territorial jurisdiction of the Courts making the decision, since there alone can such decision be regarded as having any established rules." And again, * * *** "A decision now by one of the higher Courts of Great Britain as to what the common law is upon any point, is certainly entitled to great respect in any of the states, though not necessarily to be accepted as binding authority any more than the decision in any one of the other states upon the same point." And yet again, "It will of course sometimes happen that a Court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievous in its consequences as to feel compelled to disregard it.".

And here we might ask, was it not by the rigidness of the rules of the common law, by its ultra conformity to the rule of adhering so strenuously to precedents, "by reason of the paucity of its then settled principles, and the inflexibility of its forms," that the system of chancery practice and pleading was called into existence? In other words, was it not the doctrine of my subject theme, carried to an extreme, and to that more than aught else, that rendered a Court of Chancery necessary? To this we think every lawyer must respond in the affirmative.

But now chancery has grown to be a jurisdiction of such strict technical rules, that it is said by a distinguished writer on equity doctrine, "that there are now many settled rules of equity which require to be moderated by the rules of good con

science, as the most rigorous rules of law did, before the chancellors interfered on equitable grounds."

Let us glance for a moment at the vast system of law which has grown up within a very few years regarding railroad corporations. In their earlier history the means of transit they afforded was felt to be a necessity of modern civilization. The law of common carriers was construed to the utmost in their favor. They were fostered and encouraged by national, state, municipal, and, we may add, by judicial legislation. A mass of law has grown up which is a separate branch of itself; and in looking over the long line of decisions rendered so nearly uniformly in their favor, we are almost driven to the conclusion that, like the kings of England under the common law, they can do no wrong.'

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As with the railroads so with the other great corporations, trusts, syndicates and combinations. They have received national, state, municipal and judicial favors unnumbered. Only a few months ago one of the decisions of the highest Court in the land was announced by that able law magazine, The American Law Review, in its head-lines and in small caps, as the "TRIUMPH OF THE Sugar Trust Over the PEOPLE OF THE UNITED STATES.".

In the very able paper read before this Association at its last annual meeting by our learned brother Frank H. Graves, he used this strong and forcible language:—“But of this there can be no doubt, that the federal judiciary as a rule is the stronghold of corporate influence and over-reaching." And again in speaking of the same subject in words more potent and able than I can hope to command, he says: "In state after state from the Atlantic to the Pacific, it has been seen that the great corporations of the country have exercised over the Courts an undue and unjust, and too often a corrupt influence. ***** Day after day, year after year, here a little and there a little, these soulless and breathless creations of the genius of modern enterprise are extending their influence, their demands and their greed. They never die; they never tire; they never sleep."

Is it not well to call a halt? Shall the mass of law and precedent built up in the past few years, and by which these gigantic

corporations have so enormously prospered, continue to be the law of the land and be riveted on the body politic by the doctrine of stare decisis?

But a few weeks ago a decision was rendered by our highest Court the most august tribunal in the world—on a question in which the whole nation took a deep and abiding interest. On this decision depended millions of national revenue; on it depended vital principles which are now causing so much 'anxious thought throughout the length and breadth of our common country, as to whether that Court would lend itself to the further upholding and upbuilding of a monied class, already too powerful, and seriously menacing the liberties of the people. We waited with strained nerves and bated breath for that decision which was felt to be so fraught with the destinies of the nation. You are all aware of what that decision was, and I need say no more.

Yet here was the singular feature attending the hearings of that case: Certain issues were submitted to the Court which were of the greatest moment. The Court was evenly divided; four being upon the one side and four upon the other. The ninth member was absent, being detained by illness, which at one time seemed as though it might be mortal. His coming was most anxiously looked for, should it please the Supreme Judge of the universe to restore him to health. Happily he was restored and returned to the scene of his labors. Then, when it became known what his holding would be upon those issues, we beheld the singular spectacle of a learned and honored member of that Court changing from the one side to the other, and by that change rendering a decision which we cannot,—with all due respect be it said,-believe was in the interest of the great mass of the people. Thus, by the vacillating opinion of one man, law was made.

Should the doctrine

of stare decisis in all its force apply to that decision?

There was a decision rendered by that same august tribunal but a few years ago, which, like the one to which we have just alluded, was of the greatest moment. Not only was there a large amount of money involved in that decision, but the question of human liberty as well. Not alone was the attention of the people of this country turned to that forum, but the eyes of

the whole civilized world. This case, like the former, involved grave questions of constitutional construction; it was argued and reargued. It received the long and laborious consideration of the Court, every member of that learned body writing a separate opinion and presenting his individual views. The Court. in that case stood seven to two, in the determination of the main issues submitted, and not, as in the former, five to four. The questions then submitted were regarded as settled, and the doctrine which is my subject theme could have been safely invoked, upon all like questions, by a citation of that case.

But in less than a decade that decision was reversed, and by a higher tribunal than even the Supreme Court of the United States. It was not merely explained, nor modified, nor limited, nor (in an exact sense) overruled; it was reversed, and reversed in such a manner as never again to be raised or questioned. Then, and only then, could the issues decided be said to be res adjudicata; then, and only then, were they definitely settled, and settled for all time.

The tribunal to then determine them was the people, and the decision then rendered was written in such a way as never to be doubted or gainsayed. The characters in which it was written were too indelible ever to be effaced; they were graven too deeply ever to be forgotten; the page upon which it was written was the broad soil of a continent; the pen was the bayonet; the ink, the best blood of American freemen.

It may be said the question was determined in strife, in passion, in the frenzy of blood, in the arbitrament of war, and not by the higher and more godlike quality of reason. Granted: yet it appears in the history of mankind, from the earliest ages, that certain issues have to be thus determined; and, Stat pro ratione voluntas populi." Yes; "The will of the people stands in the stead of a reason."

Will the former case be reversed in the same way as the latter? I trust in God it may not be! Yet mutterings of discontent are heard all over the land. The people are thinking, and when they have thought they are not afraid to speak; and from words, with the American people, there is but a short step to action. They can see no reason why the landlord should be

preferred to the tenant; they may be told, "It is law;" but they will reply, "It is not justice."

The American citizen is proverbially a law-abiding man. He has in times past been always ready to bow to the majesty of the law. But it may be noticed, noticed with pain and regret, that this feeling of respect and veneration is passing away. He feels almost powerless in attempting to assert his rights before the might of one of these gigantic and all-powerful corporations. The feeling that he is powerless only whets the edge of his hate. He is baffled by delay, vexed by appeals, opposed by the ablest and most skilled counsel, even in suits of but little moment and involving trifling sums; he is compelled to dance attendance at their good pleasure until his patience is worn out, his money exhausted, and he feels his manhood humiliated; and then at last, when a decision is reached, but too frequently does he find it against him, and on a strained application of the doctrine of stare decisis. Is it any wonder he is growing restive? Is it surprising that instead of regarding the Courts as the palladia of his rights he is coming to fear them as instruments of oppression?

We might be the better reconciled to the stricter application of this doctrine, could we always have men elected to the Bench of greater experience, of superior wisdom, of profounder learning, and whose characters for integrity stood entirely above suspicion. We would that we could, with full assurance of truth, apply to each and all of them Shylock's encomium to Portia :

"A Daniel come to judgment; yea, a Daniel!"

Such, however, at the present time and under our present system of choosing seems to be an impossibility. Even with the best selection we can make, the fitting material is not always available. A Mansfield or a Thurlow, a Marshall or a Shaw, is not the product of every age. Too often are men elected to high judicial positions as a reward for pot-house political services, or by reason of a trick of popularity; too often chosen by reason of having

"Crooked the pregnant hinges of the knee,
That thrift might follow fawning,"

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