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(1882) 7 App, Ca. at p. 275.

^ Lord Blackburn in Caledonian Railivay Co. v. Walker s
\ Trustees (1882) 7 App. Ca. at p. 302. Within recent years the
House of Lords has given two decisions on questions arising out
of trade union disputes, of which we may not say that they are
not consistent, but from which the profession has not yet succeeded
in extracting any consistent and generally approved doctrine. We
know that the second of them cannot overrule the fust, but it has
consideral)ly modified the sense in which it was understood at the
time. The earlier decision was as deliberate as possible, though
not unanimous.



VI CASE-LAW AND PRECEDENTS 339

then practicable, against the party who failed to
appear. In the result the previous declaration was
confirmed, but after full argument, in which the
point was treated as open and discussed on its
merits. Their lordships, it is true, drew a distinc-
tion between cases deciding civil rights and cases
involving penal consequences. They said : " In the
case of decisions of final Courts of Appeal on
questions of law affecting civil rights, especially
rights of property, there are strong reasons for
holding the decision, as a general rule, to be final
as to third parties. The law as to rights of property
in this country is to a great extent based upon and
formed by such decisions. When once arrived at,
these decisions become elements in the composition
of the law, and the dealings of mankind are based
upon a reliance on such decisions." But they were
careful to avoid any following of Lord Campbell's
dogmatism, for they added : " Even as to such
decisions it would perhaps be difficult to say that
they were, as to third parties, under all circum-
stances and in all cases absolutely final, but they
certainly ought not to be reopened without the very
greatest hesitation." ^

1 Ridsdalc v. Clifton (1877) 2 P.D. 276, see at pp. 306, 307 ;
approved and repeated by Lord Halsbury, Read v. Bishop of
Lincoln [1892] A.C. p. 654.



340 FIRST BOOK OF JURISPRUDENCE chap.

This judgment of the Judicial Committee was
delivered by Lord Cairns, then Lord Chancellor.
It would seem that he was not prepared to
accept Lord Campbell's self - denying ordinance
for the House of Lords in its full extent : the
Judicial Committee could not, of course, properly
express any opinion as to what the House of
Lords ought to do in exceptional cases : but the
Judicial Committee, advised by Lord Cairns,
certainly did act in a different spirit from the
House of Lords advised by Lord Campbell. In
fact the Judicial Committee had gone very near
\ to overruling itself many years earlier, in 1842,
' though it was then said that the previous opinion
dissented from was " in some degree extra-
judicial." ^
Criminal On the other hand, the Court for Crown Cases

Appeals. . ~ T", • ~ •

Eeserved, which m its own jurisdiction was of last

i resort, followed its own previous decisions as bind-
ing, and the Court of Criminal Appeal, which has
succeeded to that jurisdiction, likewise holds itself
"^ bound by its predecessor's decisions.^

1 Kielley v. Carson, 4 Moo. P.O. 63, 91, 59 R.R. 336, 350 ; not
following Beaumont v. Barrett, 1 Moo. P.O. 59. Lord Campbell
took part in this decision.

2 R. V. Glydc (1868) L.R. 1 C.C.R. 139, 144 ; R. v. Harris
(1893) 17 Cox CO. 659 ; R. v. Cade (1914) 2 K.B. 209,



VI CASE-LAW AND PRECEDENTS 341

The old Superior Courts of Common Law did The Com-

- ' ' mon Law

not hold themselves altsnluLcly bound by their own Courts
: 7 — ;■". 1 . 1 l>efore

previous decisions m ((itani matters as to which 1875.
they had a peculiar and ultimate jurisdiction.^ In-
deed it is not quite clear, as already mentioned,
that they held themselves so bound in ordinary cases.

The Supreme Court of the United States has American

Courts of

never held itself bound by its own decisions, and last resort

not bound

has, m fact, completely reversed a recent previous by their^

own

opinion in at least one celebrated group of cases decisions,
within recent times.- The court was divided, but
no member of the dissenting minority suggested
that the former decision was not open to review ;
and it is not an American but a British publicist
who has observed that " the reversal by the highest
court in the land of its own previous decision may
have tended to unsettle men's reliance on the
stability of the law." ^ Whatever may be thought
of the action of the court on this particular occa-
sion, it seems clear that a tribunal which, like
the Supreme Court of the United States, is not

1 HadfiekVs Ca. (1873) L.R. 8 C.P. 306; see especially per
Bovill, C.J., at p. 313. As to judgments of Divisional Courts
under the existing practice in cases wliere there is no further
appeal, see Kruse v. Johnson [1898] 2 Q. B. 91.

- The Legal Teiulcr Cases (1870) 12 Wallace, 457. And see
J, C. Gray in Harv. Law Rev. ix. 40.

2 Bryce, The American Commomoealtlt , Srd ed. 1893, i. 270.



342



FIRST BOOK OF JURISPRUDENCE



unfrequently called upon to decide great political
controversies under judicial forms could not tie
itself down to Lord Campbell's and Lord Halsbury's
rule without risk of inconveniences far graver than
any that can result from the opposite course. The
like understanding prevails in State Courts, though
the reasons for it may not there be so strong. A
very learned American writer states it is well known
that "the highest courts of the respective States,
as well as the Supreme Court of the United States,
all consider that they have the power to depart
from their former rulings, however inexpedient it
may be to exercise it." ^

Decisions on the same or an analogous point,
given by a court administering the same or sub-
stantially the same law, but in a different jurisdic-
authority. ^-ion, have never been treated as binding by English
courts. They may be treated with respect, in
some cases with very great respect, but an English
court is not bound to follow them, and indeed is
bound not to follow them if it thinks them in-
correct. The decisions of the Judicial Committee
on appeal from colonies where the Common Law
prevails are the most conspicuous example. At
least once the Court of Appeal has dissented from

' J. C. Gray, Ilarv. Law Eev. ix. 40.



Decisions
in other
common-
law juris-
dictions



VI CASE-LAW AND PRECEDENTS 343

the couclusion of the Judicial Committee on an
important point of mercantile law.^ More lately
there has been a much discussed judgment of the
Judicial Committee which both Irish and English
judges have refused to follow." Such dissent,
however, is uncommon, as might be expected ; the
more usual relation was expressed by Lord Esher
in the Court of Appeal in 1878 : " Though those
decisions are not authorities which bind us, we are
always glad to be able to follow them." ^

The judgments of Irish courts, of the leading
American courts, especially the Supreme Court of
the United States, and of Scottish courts so far as
they deal with principles of general jurisprudence
or mercantile law common to the two countries,
are held entitled to the same kind of resard."* In
the United States, reciprocally, modern English



1 Leask v. Scott (1877) 2 Q.B.D. pp. 376, 380. So as to decisions
on appeal from the old Admiralty Court, see L.R. 6 Q.B. p. 736.

'^ See Dulieu v. White ct Sons [1901] 2 K.B. 669.

3 Acatos V. Burns, 3 Ex. D. pp. 282, 291. Still less, of course,
are dicta in the Judicial Committee binding, see A. G. v. Jacobs
Smith [1895] 1 Q.B. at p. 483.

* See per Bramwell, B., in Oshorn v. Gillett, L.R. 8 Ex. 97 ; per
Cockburn, C.J., in Scaramanga v. Stavq), 5 C.P.D. p. 303 ; per
Lord Esher, M.R., in The Bernina, 12 P.D. p. 77, and per Lord
Herschell in S.C. nom. Mills v. Armstrong in H.L., 13 App. Ca. 10 ;
as to Scottish decisions Johnson v. Baylton, 7 Q.B.D. j). 438. But
the truth is that this is a matter of judicial tastes (which naturally
differ) more than of rule.



344 FIRST BOOK OF JURISPRUDENCE chap.

decisions, though nowhere, of course, having positive
authority, are constantly cited and discussed ; indeed
in most States they are oftener cited than the
decisions of any other State. And in any one
State the decisions of every other State have only
what may be called a persuasive as distinct from
a binding authority. For all practical purposes,
however, it may be said that a rule of general law
which has been laid down or approved, to sub-
stantially the same effect, in the House of Lords
and in the Supreme Court of the United States is the
law of the English-speaking world wherever it has
not been excluded or varied by express legislation.

Decisions given in Ireland by Lord Eedesdale
and by Sir Edward Sugden, afterwards Lord St.
Leonards and Chancellor of Great Britain, have been
treated as positive authority in the English Court of
Chancery ; but this is an exceptional tribute to the
eminence of those particular judges.
Nisi Prius Decisious of a judge sitting alone at " Nisi Prius,"

decisions.

given by way of direction to the jury, can seldom
be founded on full and sufficient argument, and by
the nature of the proceedings they have to be
arrived at without opportunity for • much considera-
tion. Such decisions have therefore never been
allowed the same weight as those of courts which



VI CASE-LAW AND PRECEDENTS 345

are able to_deliver considered judgments. Mr.
Justice Best said of a ruling of Lord Kenyon's :
" No man can entertain a higher respect for the
memory of that noble and learned judge than I
do ; but Nisi Prius decisions coming even from
him, unless they have been acted upon by succeed-
ing judges sitting in banc, are entitled to very
little consideration." ^ The practice of reporting
Nisi Prius rulings has been abandoned for many
years," but many of the older ones have become
good authority by subsequent approval, and some
of them are the only definite reported authority for
points of law now received as not only settled
but elementary.

Perhaps the best expressed justification of our Rationale

of the

system of ascribing positive authority to decided system,
cases is in an opinion given to the House of Lords
by Sir James Parke, afterwards Lord Wensleydale.

Our Common Law system consists in the applying to
new combinations of circumstances those rules of law which
we derive from legal principles and judicial precedents ;
and for the sake of attaining uniformity, consistency and
certainty, we must apply those rules, where they are not



> Parton v. Williams (1820) 22 R.R. at p. 422 ; 3 B. & Aid.
at p. 341.

- Foster and Finlason's Reports, ending in 1867, appear to be
the latest series of this kind.



346 FIRST BOOK OF JURISPRUDENCE chap.

plainly unreasonable and inconvenient, to all cases wliicli
arise ; and we are not at liberty to reject them, and to
abandon all analogy to them, in those to which they have
not yet been judicially apj^lied, because we think that the
rules are not as convenient and reasonable as we ourselves
could have devised. It appears to me to be of great im-
portance to keep this principle of decision steadily in view,
not merely for the determination of the particular case, but
for the interests of law as a science. ^

It would be too much to say that the system of
the Common Law secures complete uniformity or
consistency. Courts are not only liable to errors
of judgment, but may be imperfectly informed.
But probably it is more successful in these respects
than any other system. No doubt it appears more
complex and artificial, but it will be found on
examination that in other systems the complications
are not so much avoided as concealed or shifted.
Either a large undefined discretion must be left to
the judge in every case, and uniformity given up
even as an ideal, or a mass of judicial or extra-
judicial exposition, or both, must accumulate — as
has actually happened, for example, in France — and
form in course of time a storehouse of conflicting
opinions, all capable alike of being cited and used
in argument, but none of them authoritative or final.

1 Per Parke, J.,Mirehouse v. Eennell {1833) 1 CI. & F. pp. 527,
546, 36 R.R. p. 180.



VI CASE-LAW AND PRECEDENTS 347

Where the two systems have come into competition,
as they have done in the Province of Quebec, the
Cape Colony, and other British possessions origin-
ally settled under Continental systems of law, the
method of ascribing exclusive authority to judicial
decisions has invariably, so far as I know, been
accepted.

The more or less authoritative expositions of Use of

-r. 1 CO- 1 • Roman

Roman law, or of any foreign system, by ancient or and foreign
modern writers, may be cited by way of illustration
in courts administering the Common Law, but only
on their intrinsic merits, and they can be usefully
cited only on questions of principle where there is
no apparent reason for the law being different in
different countries ; and even then it is seldom
desirable to rely on them in argument except in
the absence of appropriate authority in our own
books. There are very few cases of the opinion of a \
Roman lawyer, as embodied in the Digest, being used j
and avowedly followed by an English Court for
the decision of a purely English litigation. Only '
three such are known to me. In 1843 the Court
of Exchequer Chamber had before it a new and
important point on the rights of adjacent landowners
to the use of underground waters. There was no
English authority definitely dealing with the point.



348 FIRST BOOK OF JURISPRUDENCE chap.

and the Digest of Justinian was freely cited in
argument. The Court thought the English cases,
though not decisive, were against the existence of
the right claimed by the plaintiff, and added:

The Roman law forms no rule, binding in itself, upon
the subjects of these realms ; but, in deciding a case upon
principle, where no direct authority can be cited from our
books, it affords no small evidence of the soundness of the
conclusion at which we have arrived, if it proves to be
supported by that law, the fruit of the researches of the
most learned men, the collective wisdom of ages, and the
groundwork of the municipal law of most of the countries
in Europe.^

And a fragment of Ulpian vouching and approv-
ing an opinion of Marcellus was declared to be
" decisive upon the point in favour of the defend-
ants." Marcellus was vouched again in 1854 by
Lord Justice Knight Bruce for a general rule of
construction.^ In the last year of his life Mr. Justice
Willes delivered an opinion of the Court of Common
Pleas in which a passage of Paulus was used, without
citing any other specific authority, to support the
equitable rights of a surety.^ It is obvious that, as

' Acton v. Bhmdell, 12 M. & W. pp. 334, 353.

'^ Lowe V. Thomas, 5 D. M. & G. 316, 101 R.R. 662. This may
perhaps be regarded as an ornamental citation, for the rule itself
— that words are to be taken in their usual meaning unless
the context clearly shows a contrary intention — hardly needs
authority.

» Bechervaise v. Leivis (1872) L.R. 7 C.P. 372.



VI CASE-LAW AND PRECEDENTS 349

our modern authorities became fuller, cases where it
is needful or desirable to recur to the Corpus Juris
are less and less likely to present themselves. Even
in jurisdictions which as matter of history are
outside the Common Law, for example in Admiralty
cases, the general usage is now not to go beyond our
own reported decisions.

Chief Justice Holt's famous exposition of the
law of bailments in Coggs v. Bernard^ is not
analogous to open citations of the Digest. For,
although Holt's material was largely Eoman, and he
must have known it, he took it not directly from
Justinian, but indirectly through Bracton, whom he
seems, conformably to the medieval tradition of the
king's judges,^ rather to avoid regarding as a writer
having positive authority in the law of England.
"This Bracton I have cited is, I confess, an old
author; but in this his doctrine is agreeable to
reason, and to what the law is in other countries."

1 Ld. Raym. 909, 1 Sm. L.C. 11th ed. p. 173.

- "The whole court said that Bi'acton was never held for an
authority in our law." — Fitzh. Abr. Garde, pi. 71. This statement
must rest on some private tradition : it is not in the Year Book
report referred to in the [margin of Fitzherbert. In Plowd. 357,
Bracton and Glanvill are said not to be "authors," i.e. authority,
but quotable for ornament. Coke, probably with intention, while
citing Bracton honourably, calls him not audor but scriptor, Pref.
to 9 Rep. ad fin. Best, C.J., went a little farther, see 27 R.R.
309. At iiie-.int Bracton can be safely cited only for historical
illustration, see c.rj. Lemvion v. Wchh [1896] A.C. p. 3.



350 FIRST BOOK OF JURISPRUDENCE chap.

The Institutes are just referred to by way of
illustration.
Foreign The administration by English authorityjDf those

law in ;

British foreign systems of law which actually prevail in
sions. particular British possessions, as does French law

in the Province of Quebec and in Mauritius,
Eoman-Dutch law in the Cape Colony, and (in
certain departments) the personal law of Hindus,
Mahometans, and others in British India, is alto-
gether a different matter. In those jurisdictions
the law of England is itself, properly speaking, a
foreign law which can be cited only by way of
illustration. But the tendency of both advocates
and judges in all jurisdictions is to use and rely on
the books with which they are most familiar, even
if they be not properly entitled to be treated as
having authority in the law discussed and applied
by the court. It would seem at first sight rather
difficult to import English technical notions into
the administration of Hindu or Mahometan law,
conducted with professed regard for the native
principles and authorities of each system. But
experience has shown that, with the best intentions,
the difficulty is to avoid doing this. And the
tendency is by no means confined to British or
English-speaking lawyers. I have seen an opinion



VI CASE-LAW AND PRECEDENTS 351

of a distinguished French advocate on a case arising
in Peru, in which he simply assumed the French
Civil Code to be applicable. In fact the Peruvian
Code on that head of law was practically a transla-
tion of the French Code, but the learned Frenchman
did not refer to this at all, nor did he appear to
have made any inquiry or verification.



CHAPTER VII

ANCIENT AND MODERN STATUTES

[Reports of the Statute Law Commissioners from 1835. T. E.
Holland, Essays %ipon the Form of the Law, London, 1870 ; Sir
Courtenay Ilbert, Legislative Methods and Forms, Oxford, 1901.]



Ancient The actual procedure of Parliament or of any other

JxCtiS of

Pariia- legislative assembly is a matter of constitutional
framed. °^ law not to be considered in this work. But the
place of legislation among the sources of law is
very different from what it was in the Middle Ages,
and a student may easily be misled if he carries
back into medieval history notions derived from the
constant and systematic working of our modern
legislative machinery. In the Middle Ages legisla-
tion was not the primary business of Parliament,
and the rule that the king cannot legislate without
Parliament was established only by degrees. Early
statutes, therefore, are of a mixed character, con-
taining both legislative and administrative provisions.

352



CH. VII ANCIENT AND MODERN STATUTES 353

"We can hardly separate the declaration of new law
from the enforcement of old, the establishment of
novel remedies for novel mischiefs or newly detected
shortcomings from the king's executive instructions to
his otficers. The King in his Council is alike ready
to make fresh rules, to provide fresh machinery for
the better working of existing rules, and to dispense
justice in extraordinary cases. Law-making is not
yet regarded as a distinct branch of sovereign power,
external to the judicial authority, requiring strict
and literal obedience, but entitled to nothing more.
Hence there is a notable contrast between ancient
and modern statutes. " The former," said the
Criminal Law Commission of 1835, "often contain
little more than the enunciation of a general
principle of law, leaving the Courts to work out and
establish the provisions necessary for carrying the
law into effect, whilst in modern statutes the opposite
extreme appears to have been followed ; and the
enactments are expressed with much useless circum-
locution, and are overloaded with minute provisions,
details, and repetitions." Again, the wording of the
statutes was not finally settled by Parliament itself,
but entrusted to a smaller body of the king's learned
counsellors and judges. In 1305 Hengham, Chief
Justice of the Common Pleas, cut short an argument

2 A



354



FIRST BOOK OF JURISPRUDENCE



Profes-
sional
jealousy
of statute
law.



of counsel on the construction of the second Statute
of Westminster with the remark : " None of your
glosses on the Statute ; we know it better than you,
for it was our work." ^ Hengham was Chief Justice
of the King's Bench in 1285, when the statute was
passed, and would naturally be one of the chief
persons consulted. In later times the judges have
treated Acts of Parliament as proceeding from a
wholly external and unjudicial authority. Coke,
in the Prefaces to his Reports and elsewhere, gave
utterance to the feeling that Acts of Parliament
which meddle with the Common Law (that is, with
the judicial development of it by the courts) are
on the whole likely to do more harm than good.
His criticism did not spare even the statutes of
Edward I.

This feeling, which may now be called traditional,
is not due merely to blind professional dislike of
change. There is real danger of both the principles
and the administration of the law being impaired
by the well-meant adventures of amenders who are
not sufficiently informed to understand the difficulties
of their task, and who have not the skill needed for
its adequate execution. Both the matter and the



^ " Neglosez point le statut ; nous le savonis nicuz do vous, qar J

nous les [sic] feimes " : Year Book, 33-35 Ed. I., ed. Horwood, p. 83. -^



vir ANCIENT AND MODERN STATUTES 355

I'orin of legislation depend on the will of the
legislator, and in almost all English-speaking com-
munities legislative power has been exercised by
assemblies which cannot well be learned as a whole,
and which may or may not be disposed to take
the advice of competent persons as to the workman-
ship of their productions.

In fact tlie statutes of Edward I., framed, as we Degenera-
tion of
have seen, by learned men who treated the resolu- workman-

tions 01 Parliament as instructions leaving them a after Tudor

discretion as to form, are clear and businesslike.

If they are obscure to posterity, it is because the

language and matter are no longer familiar, not by

reason of l)ad work. The great statute of " Quia

Emptores," which is still embodied in the Jaw not

only of England but of most lands settled from

England, concludes by defining what are now called

the "extent" and the "commencement" of its

operation with precision that modern draftsmen

have restored only in our own tinio.^ Diffuse

language and slovenly drafting became the rule in

the Tudor period, concurrently with an enormous

increase of legislative activity. The Crown had

^ Et sciendum (juod istud statutuiii locum tenet de tcrris
venditis tcnendis in feodo simpliciter tantum, et se extendit ad
tempus futurum, et incipiet locum tonere ad festum sancti Andree
proximo futurum.



356 FIRST BOOK OF JURISPRUDENCE chap.

discovered that Parliament could be used as a
revolutionary engine of despotic authority under
constitutional forms, and it v^^as used without spar-
ing, but also without any method being elaborated.
When an enactment of ambitious design and wide
application, like the Statute of Uses, was found
inadequate for its purposes, the failure, together
with the various unintended consequences and
complications, was almost entirely left to itself. In
this period ordinary legislation was dwarfed to a
considerable extent by proceedings which were
legislative in form, but in fact political acts of State,
such as the series of statutes which carried out the
abolition of Papal supremacy and the reconstitution
of the Church of England.

In the seventeenth century, too, constitutional
questions had the upper hand. From the Stuart
reigns we have perhaps half a dozen Acts of Parlia-


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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 20 of 22)