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University of^ Pennsylvania
Law Review
And American Law Register
FOUNDED 1852 Published Monthly,^ November^ to^ June,^ by^ the^ University^ of^ Pennsylvania^ Law^ School, at 34th and Chestnut Streets, Philadelphia, Pa.
VoL. 76 MARCH,^1928 No.^5
THE RULE OF PRECEDENTS
FREDERICK G. MCKEAN, JR.
Stare decisis^ et^ non^ quieta^ movere,^ which^ may^ be^ freely translated, to abide by precedents and disturb not settled^ prin- ciples, is a doctrine that has been variously referred to as "the rule of precedents;" "the^ sheet-anchor^ of our^ jurisprudence;"^ "a^ will o' the wisp;" "a moral obligation;" and "the bogie man striding across the road^ of^ progress."^ It^ is^ a^ characteristic^ principle^ of Anglo-American law,^ which^ fundamentally^ distinguishes^ it^ from the legal systems of Continental Europe, none of which has ever adopted the maxim.' While knowledge of the precise date and origin of this far-reaching principle is as hazy as the history of the beginning of the Hanseatic^ League,^ the^ time^ may^ not^ be far distant when some scholar will solve the problem. We know that there was^ no^ common^ law^ at^ the time^ of^ the^ Norman^ Con- quest, for in Leges Henriei Primi, which^ was^ written^ about^ the year 1118, or roughly half a century after the battle of Hastings, the compiler mentions three main contemporaneous bodies^ of custom, the Mercian law, the Dane law and the West Saxon law. 'Bisschopp, Moderu Roman-Dutch Law (1926) 42 L. Q. REV. 237, 238. A few civil law jurisdictions outside^ of^ Continental^ Europe^ have^ borrowed^ the English system of judicial precedents including Scotland, Louisiana and Que- bec. Walton, Relationship of Law of France^ to^ Law^ of^ Scotland^ (i9o2)^14 JuRiD. REv. 17. (
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The subsequently established King's Courts, destined to survive numerous local courts, by^ a^ process^ of^ selection,^ adaptation^ and extension, procured a coalescing of^ these^ "coutumes"^ into^ a^ na- tion-wide system and substituted judiciary law^ for^ customary law; which was accomplished so skilfully that the historic^ fiction arose that the common law was of immemorial antiquity,^ and Magna Carta's phrase "the law of the land" in the 3 9th chapter of that memorable document, evidences the thoroughness with which the amalgamatiohi of the "coutumes" had been effected in a comparatively short period of time. Even then there seems to have been no recognized doctrine of^ judicial^ precedents,^ for^ the famous case of the Prior of Lewes against the Bishop of Ely' decided in the year 13o4, often erroneously stated to be a case wherein a precedent was cited, merely contains an assertion by counsel (Herle) that the judgment to be given would thereafter be an authority. At the same^ time^ it^ must^ be^ recognized^ that the writings of Bracton at a time prior to the date of Herle's argu- ment and subsequent to the signing of Magna Carta contain some 400 citations of judicial decisions. Manifestly the^ discovery^ of the origin, shaping and formulation of the maxim Stare decisis is of more than antiquarian interest, for the indices of text- books, digests and reports often reveal a confusion of thought as to its nature, as for example, when they index an illustration of the doctrine of "the law of the case" or an application of res judicata under the^ heading,^ "Stare^ decisis,^ etc."^ It^ goes^ with- out saying that those who agree with the judge who looks on the rule as a sheet-anchor as well as those who despairingly incline to the opinion of the judge who regards it^ as^ a^ will^ o'^ the^ wisp, would gladly welcome such a valuable aid towards the compos- ing of their differences. To many people the history of the rule seems to be that of Topsy, it "just growed." There seems to be a recent tendency in a few jurisdictions for courts of last resort to enlarge the working of the maxim to stare deciso, and to cite the famous case of Beamish v. Beam- is h 3^ as authority for the proposition that a decision of an ap- (^2) Y. B. 32-33 Edw. I, 30-34 (1304). 39 H. L. Cas. (^) 274, 338, 344, 349, (^353) (1859).
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require that exceptions be engrafted on a general rule of law. In such a case courts often recognize the alterations effected by social changes and give effect to them; as in the leading case of Corbett v. Poelnitz,^8 where the court decided that under (^) the then novel device of separation agreements, a married woman's incapacity to (^) contract would not be available to her as a defense to an action of contract where she was living apart from her (^) hus- band under an agreement of separation. This recognition (^) of social change is particularly (^) noticeable in the law of status, which was practically revolutionized in a generation. In this con- nection it is surmised that much of the difficulty and confusion which arose in the early development of (^) the law of employer and employee might have been avoided by (^) a prompt recognition of the environmental social and industrial (^) changes occasioned by the inauguration of an industrial era, instead of trying to pour new wine into old bottles by treating the new status as though it were that of (^) master and servant. There is now a marked tendency in a school of (^) writers on legal questions to lay especial stress upon "economic law," and other social phenomena. One recent critic asserting that a dis- tinguished court had shown "ignorance of economic law,"-a rather ambiguous statement if wrested from its context, for, of course, what was meant was a supposed failure to take judicial notice of a matter of economic fact, or what used to be known as a (^) principle of political economy. While undoubtedly the courts of today are willing to take cognizance of well attested facts, they are mindful of the risk of adopting ephemeral theories of economics or sociology, and many observers will not agree with the opinion of the brilliant writer on social psychology that the law is fossiliferous. (^) This open-mindedness in appellate courts has been especially noticeable in dealing with questions of con- stitutional law, an "observational science" in which courts study the logic of events. Thus the (^) case of People v. Wilian&s1^0 in, which a unanimous court (^) decared unconstitutional a statute pro-
si Durn. (^) & E. 5 (Eng. (^) 1785). (^9) F. G. MaKean, Jr., A Useful Maxim (1926) 4 N. CAR. L. REv. 118. 10 189 N. (^) Y.' 131, (^81) N. E. 141 (19OW).
THE RULE OF PRECEDENTS
hibiting night work for women as a denial to women of equal rights with men, was overruled by the decision of People v, CharlesSchweinler Press" on consideration of facts found by (^) the State legislature. No less willingness to change a decision (^) predi- cated upon assumptions as to facts was shown by the (^) Supreme Court of the United (^) States when it modified the doctrine of Lochner v. New York 12 in the leading (^) case of Bunting v. Ore- gon, 13 which affirmed the constitutionality (^) of an hours of labor statute. This willingness (^) of our American courts of last resort to recognize change of (^) environmental facts has been so marked throughout the course (^) of their history that a great lawyer and famous (^) teacher and text-book writer is said to have remarked that "constitutional law is not (^) a system of law." The adaptability of American constitutions (^) to modern conditions has been finely phrased by the Supreme (^) Court of Wisconsin in the following language: "Where there (^) is no express (^) Constitutional (^) command (^) or prohibition, but only general language or policy to be (^) con- sidered, the conditions prevailing at the time of (^) the Con- stitution's adoption (^) must have their due weight; but the changed social, economic, and governmental conditions (^) and ideals of the time, as well as the problems which the changes have produced, must also (^) logically enter into the considera- tion, and become influential (^) factors in the settlement of problems of construction and interpretation." 14
The vexed question whether judges declare law or make it, reminds the average lawyer of the ancient allegory (^) of the shield which was gold on one side and silver on the other. Those (^) who contend that judges make (^) and do not declare law will concede that the opposite theory has been a potent influence (^) in legal de- velopment manifesting (^) itself, for instance, in the oft-quoted maxim Jus dicere et non fus dare, and frequently (^) revealed by the declarations of judges that (^) they will travel super antiquas vias. (^21214) N. Y. 395, lo8 (^) N. E. 639 (1915). I98 (^) U. S. 45, (^64) (1905). (^1243) U. S. (^) 426 (1917). Borgnis v. Falk Co., 147 Wis. (^) 327, 349, 350, 133 N. W. 209, 215, 216 (igii).
THE RULE OF PRECEDENTS
tion or legal system, care being taken to ensure that the selected material be such as harmonizes (^) with the general law, maxims, customs and usages of the (^) jurisdiction into which it is intro- duced. (^) If a prior decision of his own court be cited, the obliga- tion to follow it varies according to circumstances. (^) For example, an uncontested proceeding, consent decree or an ex (^) parte action does not carry much weight, while on the (^) other hand a well- contested suit, especially a test case in which (^) real and substan- tial conflicts of interests (^) have been disposed of, (particularly where the community (^) has acquiesced in the results and governed itself (^) accordingly), should not be overruled except for very cogent (^) reasons, such as oversight of a statute or failure (^) to observe (^) some requirement of constitutional law. As it is difficult to change a rule of property, except by legislative enactment, without unsettling titles, the safest course would be for a (^) lower court, even though it (^) disapprove of its doctrine, to abide by the rule it has previously (^) followed and leave its alteration to the highest appellate court (^) of the jurisdiction. This for a two- fold reason: first, to settle the matter in the Federal courts which follow a (^) "rule of property" as established by the highest court of a state (^) even on common law principles ;20 and secondly to have the comforting feeling that if it clearly appears (^) that the rule is harmful (^) and unjust or opposed to good business practice it will be reversed, and such reversal (^) take effect not only in the district from which (^) the appeal shall have been taken, but through- out the entire state. (^) When all is said and done, even an appellate court is very reluctant (^) to change a rule of property. 21 While not within fhe (^) purview of the I 4 th Amendment of the United States Constitution, 2 2^ the tendency is to change only such judicial rules of property as would be constitutional (^) if enacted by a legislature with retrospective (^) effect; thus expediency no less than the moral force of the principle stare decisis (^) inclines courts to abide by " Chicago v. Robbins, (^) 2 Black 418 (U. S. 1863). 'Board of Commissioners v. AIlman, i42 Ind. 573, 42 N. E. (^) 2o6 (1895); Kirby v. Boyette, 118 N. C. 244, 24 S. E. 18 (1896) (^) ; Struthers v. Railway, 87 Pa. 282 (1878) (^) ; Reed v. Geddes, 287 Pa. 274, 135 At. 232 (1926) ; Mclnnis v. Lyman, 62 Wis. 191, (^) 22 N. W. 405 (1885); State v. Sutherland, 66 Wis. 5I1, 166 N. W. 14 (1918) ; Read v. Bishop of London, supra note 4. "O'Niell v. Northern Colo. Irrigation Co., 242 U. S. 2o (1916).
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precedent in such cases. Of course changes affecting contingent interests and expectancies and which do not disturb vested rights will be unhesitatingly corrected. In addition, courts will overrule palpably unreasonable or mischievous precedents regardless of the question of "rules of property." 23 It^ is^ hardly^ necessary^ to labor the point that precedents and rules of construction have considerably less weight in the interpretation of wills than in the (^) construction of other writings such as deeds and leases which owing to statutory requirements or customary usage are more uniform. 24 Sir William Jones's frequently quoted jest that "no will has a brother," has been (^) turned to earnest by decisions that the same words may express (^) different intentions according to context or attending (^) circumstances.2 5^ Some scriveners try to avoid this difficulty by inserting an explanatory clause, "Hereby intending, etc." Another wide class of cases in which courts hesitate to overrule (^) precedents arises where contracts have been made in reliance upon a decision. While a change (^) of decision in such a case does not deprive of property without due process of law within the meaning of the i4th Amendment of the Constitution of the United States,2" nor constitute an impairment of a con- tract within the accepted interpretations of Section io, Article (^) I, of the Federal Constitution ;27 still a court generally deems it advisable to abide by a decision upon the faith of which solemn agreements have been entered into. It has even been held in some jurisdictions that a state court has no power to impair the obligations of an existing contract by a change of decision ;28 thus
"Boon v. Bowers, 30 Miss. 246 (1855); Rumsey v. Railroad Co., 133 N. Y. 79, 30 N. E. 654 (1892) ; Ray v. Natural Gas Co., 138 Pa. 576, 20 At. io65 (i890. " Colton (^) v. Colton, I27 U. S. (^) 3oo (i888); Bergman (^) v. Arnhold, 242 Ill. 218, 89 N. E. iooo (i9o9) ; In re Griffith's Will, 172 Wis. 630, 179 N. W. 768 (i92o). 'Fidelity Trust Co. v. Bobloski, 228 Pa. 52, 76 AUt. 720 (1gIo). Central Land Co. v. Laidley, i59 U. S. (^103) (894); Milwaukee Electric Light (^) Co. v. Wisconsin, 252 U. S. ioo (I9oo). 'Cross Lake Club v. Louisiana, (^224) U. S. 632 (1912); Railroad v. City of Cleveland, 235 U. S. 50 (914); Tidal Oil Co. (^) v. Flanagan, 263 U. S. 444 (924). 'Harmon v. Auditor, 123 Ill. 122, 13 N. E. I6i (1887) ; Haskett v. Maxey, 134 Ind. 182, (^33) N. E. 358 (893).
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a branch of the law of contracts. Where, however, the tooth of time and the buffetings (^) of experience have proved the un- reliability of a rule, it should be abolished, as in the case of the misleading fiction that every man is (^) presumed to know the law, founded in great part upon repeated references to an overruled argument of counsel on the losing part of a reported case. 87 But after all, rules of law, like maxims, are a species of legal short-hand (to borrow Sir John Salmond's illuminating phrase), and even when couched in terms of the absolute are mostly relative. When a rule satisfies the feeling of legal right (the Rechtsgefuhl (^) of Dr. von Jhering), courts do not delve deeper. Where, however, a court is not satisfied with the apparent doc- trine of a rule seemingly in point, it endeavors to (^) shake off the kind of hypnosis induced by catch words and rhythmic phrases intended to be the equivalent of approved statements of legal doctrine, and which sometimes appear in syllabus or digest and text-book, find a place in a plausible brief appeal to a busy trial court and run their course until experience (^) demands their re- statement. A revision is bound to come sooner or later, in such cases, for even a long series of decisions (^) does not always cause an unsound doctrine to stand.3 Again, -a decision concededly correct in its results is not, for that reason alone, to be taken (^) as a complete statement of an abstract proposition, without limita- tion or restriction, when applied to a case differing in its state of facts.^8 " Nor is a case necessarily binding or persuasive (^) au- thority for a proposition which appears to follow logically from it.^40
37F. G. McKean, (^) Jr., The Presuimption of (^) Legal Knowledge (1927) (^12) ST. Louis L. REv. 96. The above-mentioned (^) presumption, often mistaken as an equivalent and interchangeable phrase for the (^) maxim ignorantia legis neminem excusat, has been unequivocally rejected in the land of its birth and in at least two American jurisdictions. "Barden v. Railroad, 154 U. S. 288, 322 (1894) ; Mason v. Nelson Cotton Co., 148 N. C. 492, 62 S. E. 625 (19o8); Rumsey v. Railroad, 133 N. Y. 79, 3o N. E. 654 (1892) ; Leavitt v. Morrow, 6 Ohio 71 (1856); (^) PoI.ocx, THE GENIUS OF THE COMMON LAW (1912) 113; LIEBm, HERMANEUTICS (Ham- mond's ed. i88o) 209. Holcombe v. Bonnell, 32 Mich. 6 (1875); Quinn v. Leathem [i9Ol] A. C. 495.
36.^60 Quinn^ v.^ Leathem,^ supra^ note^ 39;^ HOLMES,^ THE^ COMMON^ LAW^ (1881)
THE RULE OF PRECEDENTS
Many reams have been written (^) about that lineal descendant of Swift v. Tyson, (^) the much discussed case of Gelpcke v. Du- buque.^41 As finally explained in the case of Tidal Oil Co. v. Flanagan,^42 the doctrine seems to amount to this: That where. municipal or county bonds or some (^) other form of 'contracts have been declared valid by the Supreme Court of their state, prior to their issue, and such validity has been denied by the same court after their issue or making, Federal courts, where they have jurisdiction to decide as to the validity (^) of such securities under the diversity of citizenship clause (^) of the United States Con- stitution, will feel themselves entirely free to rule on the sub- ject; but where the question arises on an appeal from the state courts to the United State Supreme Court, the last (^) de-. cision of the highest state court (^) will be followed. The general subject of torts reminds (^) one of Chief Justice Willes' reported dictum that the common-law consists of statutes worn out by time for, as pointed out by many writers, the greater part of the (^) law on the subject has developed under the sanction of the Statute of Westminster 11.4 3^ The (^) topic -is a complex and intricate subject upon which it is difficult to generalize. (^) First and foremost, however, it may be conceded (^) that no precedent or series of precedents is binding where fundamental principles (^) have been ignored or (^) overlooked. Next there is the consideration that the law leans against the invention or creation of rights (^) of action, opposed to which is the maxim ubi^ jus^ ibi^ remedium.^44 There is probably no branch of law which is more affected (^) by environmental facts than that which has to do with (^) private wrongs. Social, economic and industrial (^) changes and condi- tions, the public (^) policy and felt necessities of the time all play their part. Even change of (^) public opinion has a recognized in- fluence. (^) As no man has a vested right to do wrong, precedents per se have less weight in the law of torts than in that of (^) con-
i 1 Wall. (^) 175 (U. S. 1864). For a most interesting discussion, (^) see TNAYER, LaG. ESSAYS (1923 ed.) 15o, 151. "263 U. S. 444 (924). ' (1284) WESTMINSTER II (13 Edv. I), c. 24. 41Western Counties Manure (^) Co. v. Lawes Chemical (^) Manure Co., L. R. 9 Ex. 218 (1874).
THE RULE OF PRECEDENTS
other classes of torts which may be expected to obtain judicial recognition in the future are acts once deemed harmless but since found to be injurious to public health and ascertained to be a cause of personal injury. Some anomalous phases of the doc- trine of imputed negligence may be changed in the direction (^) of abolishing legal responsibility (^) without personal fault, as has al- ready been done in Wisconsin where, in the case of Chase v. American Cartage (^) Co., 51 it was decided that a rule of imputed contributory negligence could lawfully be changed by a court of last resort. Tort liability without fault, more often of statu- tory rather than common law origin, has been (^) frequently dealt with by commentators as quasi-delict or an anomaly. (^) Generally speaking it arises (^) in cases where there is ownership, possession or control of an agency (^) with potentialities for doing harm. As a matter of business practice such liability is customarily guarded against by insurance. Prior to the era of machinery, it had so narrow a scope that instances of its application could be enum- erated in a very short paragraph. At the time of the first enact- ment of Workmen's Compensation Acts, many members of the legal profession (^) were doubtful as to the constitutionality and fairness of such legislation, but these doubts have been dispelled. The case (^) of Jensen v. Southern Pacific Co.,^5 2 in which the ju- diciary of (^) New York unequivocally overruled a prior decision that such legislation was unconstitutional, is a handsome illus- tration of the alacrity with which the courts (^) of today will admit and correct judicial error. "New occasions teach new duties," which constantly lead to a modification (^) of ancient formulas in the law of torts even where such formulas (^) have been recognized in a flood of precedents. Revision of theory also leads (^) to un- hesitating (^) reversal of long series of decisions, as in the case of Citizens Life Insurance Co., v. Brown^53 which discountenanced the theory that malice can not be applied (^) to corporations and therefore that they cannot be guilty of libel, and held that libels published in the course of his employment (^) by an officer or agent
51176 Wis. 235, I86 N. W. 598 (1922). S'2I5 N. (^) Y. 514, iog N. (^) E. 6oo (1915). [19o4] A. C. 423 (i9o4).
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of a corporation are answerable for by the company on^ the^ prin- ciple of agency. There is little that is stereotyped about^ rascality,^ conse- quently new forms of old crimes and new crimes arise from generation to generation. Except where checked by statute^ or fundamental law, courts of common law frequently avail them- selves of categories within which to include acts which are op- posed to current ethical standards. "All such crimes as espe- cially affect public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously^ affect^ the^ public^ policy^ and^ economy."^54 The principle embodied in the phrase contra bonos mores has been far-reaching in the development of criminal law and was undoubtedly a potent factor in impelling the court in the case of Coinmonwealth v. Randolph 55 to decide that solicitation to commit murder was a crime, although such decision was abso- lutely devoid of local precedent. There is no vested right in erroneous precedents in criminal law^56 and it is submitted that in cases which are contra bonos mores adherence to settled principles is much more important than a perfunctory follow- ing of precedent. The ratio legis of crimes mala in. se, to use a phrase which it has been a passing fad for some writers to ridicule, is, it is conceived, of almost overwhelming importance, and again, principle should not be overridden by precedent. On the other hand, if these views be correct, in dealing with offences merely mala prohibita, the rule would be to adhere more closely to precedent, for stare decisis should protect those whose alleged infractions of statutes which do not involve moral turpitude, and which have previously been solemnly decided to be lawful. It is difficult to agree with the view sometimes taken that an erroneous interpretation of a^ criminal^ statute^ upon^ a matter^ in- volving moral turpitude, which error furnishes a^ loophole^ op- posed to the public interest, should be adhered to^ as^ a "rule^ of
MCommonwealth v. McHale, 97 Pa. 397, 410 (1881). 146 Pa. 83, 23 Ad. 388 (1892). State v. Mathews, i43 Tenn. 463, 226 S. W. 2o3 (192o). Contra: Peo- ple v. Tomkins, I86 N. Y. 413, 79 N. E. 326 (I9O6).
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the proper legislative body for^ appropriate^ action.^ The^ maxim stare decisis, etc., does not appear to have very great weight^ in the law of evidence and procedure, as a general rule. 59 Com- paratively little adjective law is of much antiquity, and^ a^ great deal of the learning on the subject which was extant when the United States Supreme Court commenced business by adopting the practice of the Courts of Kings Bench and Chancery, is^ as obsolete, for all practical purposes, as the flint-lock musket. "The dead hand of the common law rule of 1789 should no longer be applied," is the outspoken doctrine of Rosen v. United States,^60 in abolishing the old rule of the disqualification of witnesses con- victed of crime; and, in general, "as all rules of procedure are intended to secure the administration of justice in an orderly manner, it does not seem reasonable that a rule of procedure should be observed where it is apparent that a strict adherence thereto will work injustice." 61 This means that courts will relax or modify a rule of procedure, or even of evidence in order to prevent injustice, no matter how long the practice may have been observed. 62 In other words they will treat such rules as directory rather than mandatory, adherence to first principles rather than blind following of precedents being the prime con- sideration. Furthermore, when the existence of a right is once established, even in a case without precedent, a court will adapt a suitable remedy wherever possible. 63 The modern trend is for courts to restate adjective law in accordance with the public policy of the time, the balance of public or social advantage, and in compliance with the teachings of experience "which is the life of the law." Rules of procedure are in a measure traffic regulations for the guidance of actual controversies, and the in- creasing pressure of social necessity requires reasonable order,
'Daniels v. State, 2 Penn. 586, 48 At. 196 (Del. igoi); Wetzstein v. Mining Co., 25 Mont. 135, 63 Pac. 1043 (igoi); Commonwealth v. Lehigh Valley R_. R-, 165 Pa. 162, 3o AtI. 836 (1895); McCaffrey v. Schwartz, 285 Pa. 561, 572, 132 Ati. 8io, 814 (1926). "245 U. S. 467 (1918). 'Ransom v. City of Pierre, ioi Fed. 300, 310 (C. C. A. 8th, igoo). 'Simkins v. White, 43 W. Va. 125, 27 S. E. 361 (1897) ; Baker v. Madi- son, 62 Wis. 137, 22 N. W. 141 (1885). 'Birkley v. Prosgrave, i East 22o (Eng. i8oi).
THE RULE OF PRECEDENTS
certainty and celerity in the conduct of legal business, consistent with adaptability to pressing needs and the demands of justice. This is predicated upon careful observance of the procedural re- quirements of court and legislature upon the part of parties litigant, for as President (^) Coolidge has well expressed it, "justice delayed is justice denied;" consequently lax or slovenly pleading and disregard of prescribed methods or forms devised to facili- tate litigation is a palpable wrong in the delay caused to those who may be awaiting an opportunity of having their day in court. Many metaphors have been employed by legists in describ- ing the development (^) of law. "Legal chemistry," "legal archi- tecture," (^) and a "coral reef," are only a few. Taking it all in all, the history of our law has shown its unfolding to be "line upon line, line upon line; precept upon precept, (^) precept upon precept; here a little, there a little." Perhaps no better state- ment of the conscious aim of the jurists of our legal system can be found, than by employing the neat phraseology of the great scholar and theologian whose published sayings show familiarity with the legal system of the great empire of (^) which he was a citizen. "Prove all things, bold fast to that which is good."
