those facts which should influence the questions of law were substantially the same in each, and we ought also to be able to see that the first litigation was conducted in entire good faith, and that every consideration was presented to the court which could properly have weight in the construction and application of the law. All these things, however, are manifestly impossible; and the law therefore wisely excludes judgments from being used to the prejudice of strangers to the controversy, and restricts their conclusiveness to the parties thereto and their privies. Even parties and privies are bound only so far as regards the subject-matter then involved, and would be at liberty to raise the same questions anew in a distinct controversy affecting some distinct subject-matter.2

All judgments, however, are supposed to apply the existing law to the facts of the case; and the reasons which are sufficient to influence the court to a particular conclusion in one case ought to be sufficient to bring it or any other court to the same conclusion in all other like cases where no modification of the law has intervened. There would thus be uniform rules for the administration of justice, and the same measure that is meted out *to one would be received by all others. And even if the [* 50] same or any other court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is a very serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable. Precedents, therefore, become

1 Burrill v. West, 2 N. H. 190; Davis v. Wood, 1 Wheat. 6; Jackson v. Vedder, 3 Johns. 8; Case v. Reeve, 14 Johns. 79; Alexander v. Taylor, 4 Denio, 302; Van Bokkelin v. Ingersoll, 5 Wend. 315; Smith v. Ballantyne, 10 Paige, 101; Orphan House v. Lawrence, 11 Paige, 80; Thomas v. Hubbell, 15 N. Y. 405; Wood v. Stephen, 1 Serg. & R. 175; Peterson v. Lothrop, 34 Penn. St. 223; Twambly v. Henley, 4 Mass. 441; Este v. Strong, 2 Ohio, 401; Cowles v. Harts, 3 Conn. 516; Floyd v. Mintsey, 5 Rich. 361; Riggins's Ex'rs v. Brown, 12 Geo. 271; Persons v. Jones, ib. 371.

2 Van Alstine v. Railroad Co., 34 Barb. 28; Taylor v. McCracken, 2 Blackf. 260; Cook v. Vimont, 6 T. B. Monr. 284. See, for a discussion of this doctrine and limitations upon it, Spencer v. Dearth, 43 Vt. 98.

important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Chancellor Kent 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. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been 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 urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law."1

1

1 Kent, 475. And see Cro. Jac. 527; Goodtitle v. Otway, 7 T. R. 416; Selby v. Bardons, 3 B. & Ad. 17; Fletcher v. Lord Somers, 3 Bing. 588; Anderson v. Jackson, 16 Johns. 402; Goodell v. Jackson, 20 Johns. 722; Bates v. Releyea, 23 Wend. 340; Emerson v. Atwater, 7 Mich. 12; Nelson v. Allen, 1 Yerg. 376; Palmer v. Lawrence, 5 N. Y. 389; Kneeland v. Milwaukee, 15 Wis. 458; Boon v. Bowers, 30 Miss. 246; Rex v. Cox, 2 Burr. 787; King v. Younger, 5 T. R. 450; Hammond v. Anderson, 4 B. & P. 69; Broom's Maxims, 109. Dr. Lieber thinks the doctrine of the precedent especially valuable in a free country. "Liberty and steady progression require the principle of the precedent in all spheres. It is one of the roots with which the tree of liberty fastens in the soil of real life, and through which it receives the sap of fresh existence. It is the weapon by which interference is warded off. The principle of the precedent is eminently philosophical. The English Constitution would not have developed itself without it. What is called the English Constitution consists of the fundamentals of the British polity, laid down in custom, precedent, decisions, and statutes; and the common law in it is a far greater portion than the statute law. The English Constitution is chiefly a common-law constitution; and this reflex

The doctrine of stare decisis, however, is only applica- [* 51] ble, in its full force, within the territorial jurisdiction of the courts making * the decisions, since there alone can [* 52] such decisions be regarded as having established any

rules. Rulings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides, except in so far as those reasons commend themselves to the judicial mind. Great Britain and the thirteen original States had each substantially the same system of common

of a continuous society in a continuous law is more truly philosophical than the theoretic and systematic, but lifeless constitutions of recent France." Civ. Lib. and Self-Gov. See also his chapter on precedents in the Hermeneutics. In Nelson v. Allen, 1 Yerg. 376, where the constitutionality of the "Betterment Law" came under consideration, the court (White, J.) say: "Whatever might be my own opinion upon this question, not to assent to its settlement now, after two solemn decisions of this court, the last made upwards of fourteen years ago, and not only no opposing decision, but no attempt even by any case, during all this time, to call the point again in controversy, forming a complete acquiescence, would be, at the least, inconsistent, perhaps mischievous, and uncalled for by a correct discharge of official duty. Much respect has always been paid to the contemporaneous construction of statutes, and a forbidding caution hath always accompanied any approach towards unsettling it, dictated no doubt by easily foreseen consequences attending a sudden change of a rule of property, necessarily introductory at least of confusion, increased litigation, and the disturbance of the peace of society. The most able judges and the greatest names on the bench have held this view of the subject, and occasionally expressed themselves to that effect, either tacitly or openly, intimating that if they had held a part in the first construction they would have been of a different opinion; but the construction having been made, they give their assent thereto. Thus Lord Ellenborough, in 2 East, 302, remarks: I think it is better to abide by that determination, than to introduce uncertainty into this branch of the law, it being often more important to have the rule settled, than to determine what it shall be. I am not, however, convinced by the reasoning in this case, and if the point were new I should think otherwise.' Lord Mansfield, in 1 Burr. 419, says: • Where solemn determinations acquiesced under had settled precise cases, and a rule of property, they ought, for the sake of certainty, to be observed, as if they had originally formed a part of the text of the statute.' And Sir James Mansfield, in 4 B. & P. 69, says: 'I do not know how to distinguish this from the case before decided in the court. It is of greater consequence that the law should be as uniform as possible, than that the equitable claim of an individual should be attended to." And see People v. Cicotte, 16 Mich. 283.

A judgment rendered by a court is authority notwithstanding it was one given under the law of necessity, in consequence of an equal division of the court. Regina v. Millis, 13 M. & W. 261; Durant v. Essex Co., 7 Wall. 107.

Caldwell v. Gale, 11 Mich. 77.

law originally, and 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 decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision. before the Revolution is in the direct line of authority; and where a particular statute or clause of the constitution has been adopted in one State from the statutes or constitution of another, after a judicial construction had been put upon it in such last-mentioned State, it is but just to regard the construction to have been adopted, as well as the words, and all the mischiefs of disregarding precedents would follow as legitimately here as in any other case.1

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. Before doing so, however, it will be well to consider whether the point involved is such as to have become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by any change; for in such a case it may be better that the correction of the error be [* 53] left to the legislature, which can control its action so * as to make it prospective only, and thus prevent unjust con

sequences.2

Commonwealth v. Hartnett, 3 Gray, 450; Bond v. Appleton, 8 Mass. 472; Rutland v. Mendon, 1 Pick. 154; Campbell v. Quinlin, 3 Scam. 288; Little v. Smith, 4 Scam. 402; Riggs v. Wilton, 13 Ill. 15; Ingraham v. Regan, 23 Miss. 213; Tyler v. Tyler, 19 Ill. 151; Pennock v. Dialogue, 2 Pet. 18; Adams v. Field, 21 Vt. 266; Turnpike Co. v. People, 9 Barb. 167; Drennan v. People, 10 Mich. 169; Myrick v. Hasey, 27 Me. 9; People v. Coleman, 4 Cal. 46; Attorney-General v. Brunst, 3 Wis. 787; Langdon v. Applegate, 5 Ind. 327; Hess v. Pegg, 7 Nev. 23. But it does not necessarily follow that the prior decision construing the law must be inflexibly followed, since the circumstances in the State adopting it may be so different as to require a different construction. Little v. Smith, 4 Scam. 402; Lessee of Gray v. Askew, 3 Ohio, 479.

2 66

After an erroneous decision touching rights of property has been followed thirty or forty years, and even a much less time, the courts cannot retrace their steps without committing a new error nearly as great as the one at the first." Bronson, J., in Sparrow v. Kingman, 1 N. Y. 260. See also Emerson v. Atwater,

Whenever the case is such that judicial decisions which have been made are to be accepted as law, and followed by the courts in future cases, it is equally to be expected that they will be followed by other departments of the government also. Indeed in the great majority of cases the officers of other departments have no option; for the courts possess the power to enforce their construction of the law as well as to declare it; and a failure to accept and follow it in one case would only create necessity for new litigation with similar result. Nevertheless, there are exceptions to this rule which embrace all those cases where new action is asked of another department, which that department is at liberty to grant or refuse for any reasons which it may regard as sufficient. We cannot conceive that, because the courts have declared an expiring corporation to have been constitutionally created, the legislature would be bound to renew its charter, or the executive to sign an act for that purpose, if doubtful of the constitutional authority, even though no other adverse reasons existed. In the enactment of laws the legislature must act upon

7 Mich. 12; Loeb v. Mathis, 37 Ind. 306. "It is true that when a principle of law, doubtful in its character or uncertain in the subject-matter of its application, has been settled by a series of judicial decisions, and acquiesced in for a considerable time, and important rights and interests have become established under such decisions, courts will hesitate long before they will attempt to overturn the result so long established. But when it is apparently indifferent which of two or more rules is adopted, the one which shall have been adopted by judicial sanction will be adhered to, though it may not, at the moment, appear to be the preferable rule. But when a question involving important public or private rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only the right, but the duty of the court, when properly called upon, to re-examine the questions involved, and again subject them to judicial scrutiny. We are by no means unmindful of the salutary tendency of the rule stare decisis, but at the same time we cannot be unmindful of the lessons furnished by our own consciousness, as well as by judicial history, of the liability to error and the advantages of review." Per Smith, J., Pratt v. Brown, 3 Wis. 609. And see Kneeland v. Milwaukee, 15 Wis. 458; Taylor v. French, 19 Vt. 49; Bellows v. Parsons, 13 N. H. 256; Hannel v. Smith, 15 Ohio, 134; Day v. Munson, 14 Ohio, N. s. 488; Green Castle, &c., Co. v. State, 28 Ind. 382; Harrow v. Myers, 29 Ind. 469; Mead v. McGraw, 19 Ohio, N. s. 62; Ram on Legal Judgment, c. 14, § 3.

1 In the celebrated case of the application of the Bank of the United States for a new charter, President Jackson felt himself at liberty to act upon his own view of constitutional power, in opposition to that previously declared by the