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minister of the American war period, although and conventional code of rules of which we he had an ascendancy in his cabinet, always dis- speak as the Constitution.” claimed the title of prime minister as inconsistent with the Constitution and wholly unknown The full text of the decision of the Illinois to the law. Mr. Freeman in this connection Supreme Court on the whisky trust case has marks a change in language which has happened just been published. It contains a somewhat within his own memory, and which, like other extended reference, not alluded to in the newschanges in language, is certainly not without its paper summary, in regard to the position of the meaning. “We now,' he says, 'familiarly speak courts of various States toward the monopoin Parliament and out of Parliament of the body | listic combinations known as trusts, premising of ministers actually in power, the body known that, while the proceedings instituted against to the Constitution, but wholly unknown to the these combinations have generally had for their law, by the name of 'the government.' We object some of the corporations entering into speak of 'Mr. Gladstone's government’or ‘Mr. the trust, and not the trust itself, the Illinois Disraeli's government.' I can myself remember judges point out that, so far as the courts have the time when such a form of words was un

had occasion to speak on the subject at all, known, when ' government' still meant ‘gov- they have held such trusts to be illegal. In ernment by king, lords and commons,' and Nebraska suit was brought against a distilling when the body of men who acted as the king's company which had become a party to the immediate advisers were spoken of as 'minis- whisky trust, and in holding this action to be ters' or 'the ministry." ( Growth of the Eng- an abuse of its corporate powers, and therelish Constitution,' pp. 123, 124.) We have seen, fore ultra vires, the court took the position that likewise, the practice of the Constitution ren

the trust, having a tendency to destroy comders it quite incompatible with honor or petition and to create monopoly, was contrary

So in the Ohio self-respect for ministers to retain office whose to public policy, and unlawful. public action has been condemned by the House case of a corporation which had entered the of Commons. The establishment of this prin- the monopolistic purpose of the latter organiza

Standard oil trust, the court, after referring to ciple is, however, very recent. Mr. Pitt, towards the end of the last century, kept office in tion, declared all such associations to be condefiance of repeated votes of the House of Com- trary to the policy of the State and void. The mons, and at last by a dissolution at a well proceeding brought by the attorney-general of

New York to vacate the charter of the North chosen moment showed that the country was on his side. Such conduct would at the present coming a member of the sugar trust brought

River Refining Company for its action in betime be regarded as highly unconstitutional.

out opinions from both the Special and General Again, the cabinet, which is, of course, the

Term of the Supreme Court to the effect that mainspring of our constitutional system 'the

the trust was organized for an unlawful purhyphen,' to use the words of Mr. Bagehot,

and that the action of the defendant cor

pose, *which joins the buckle which fastens the legis- poration in entering into the association justified lative part of the State to the executive part of

its dissolution. The Court of Appeals affirmed the State,' is not mentioned by writers like the judgment of the courts below without exBlackstone and De Lolme. "The cabinet,' says pressing an opinion as to the legality of the Lord Macaulay, 'strange to say, still continues trust. to be altogether unknown to the law, the names More directly, the legal status of the Diaof the noblemen and gentlemen who compose mond Match Company came up before the it are never officially announced to the public, Michigan courts on a motion to enjoin the sale no record is kept of its meetings and resolu- of some of the stock of the company held as tions, nor has its existence ever been recognized security for a loan made to procure its purby act of parliament.' These illustrations, chase. It was shown that the object of this which might be indefinitely multiplied from cir- corporation was to buy up the property of all cumstances attending the present ministerial individuals and corporations engaged in the crisis, prove the importance of that unwritten manufacture of friction matches, exacting from

error, if

the seller in every case a bond that he would gress. The importance, then, of this doctrine is at not, for a term of years, engage in or assist any once apparent. one else in the manufacture of matches in any

The rule has to do only with direct decisions upon place where his action might conflict with the

important and vital issues. The decision (not dicta)

of our higher courts furnish precedents which are interest or diminish the profits of the Diamond

to control the future disposition of similar issues. Match Company. The appellate court de- The binding authority of adjudged cases is called clared the purposes of the company to be un

for on grounds of public policy and convenience. lawful, and it was held that any contract made In Harris v. Clark, 2 Barb. 94, when pressed with a to further them was void, as against public former decision, Gridley, J.. responded as follows : policy, and such as the court would neither en

In opposition to this doctrine, however, the case force while executory, nor relieve against when of Wright v. Wright (1 Cow. 598), is pressed upon executed.

us as an authoritative adjudication which we are The whisky trust decision makes an im bound to follow. We believe in a rigid adherence portant addition to these judicial rulings, be to the doctrine of stare decisis. We regard it as cause it brushes aside the defense greatly relied necessary to preserve the stability, the certainty and on by the trusts that monopolistic combinations the symmetry of any system of jurisprudence; and cannot be charged when there is but one

therefore, if we had any reason to believe that the corporation in the case. In other words, while

decision in this case was made upon deliberate con

sideration, and that the adoption of the reasons asit may be unlawful for two or more corpora

signed by the judge was necessary to the decision tions to combine to control production or stifle

of the question before the court, we should certainly competition, the moment they lose their indi- regard it as an authority binding upon us and leave viduality and become merged in one corporate the

any there were, to be corrected in the organization, they cease to be obnoxious to court of last resort." anti-trust law. But the Illinois court holds The knowledge that a judicial decision is to form that if a trust agreement between individuals or

a part of the substantive law, that it is to operate

as a rule of civil conduct, that it is to control simicorporations be repugnant to public policy and

lar controversies in the future, begets a more careful illegal, it is impossible to see why the same is

and conscientious consideration on the part of the not true of the corporation of which it is the

court, and inspires a more profound respect for the basis. “There is no magic in a corporate court and its decisions on the part of the public. organization which can purge the trust scheme l'ere the solemn utterances of the court upon a vital of its illegality” is a dictum in which the skill issue to end with the decision, and to exert no inful organizers of some of these combinations tluence upon subsequent litigation, clients would be will see a premonition of coming dissolution. wholly ignorant of their rights and counsel helpless The anti-trust law of Illinois happens to be one

to advise. So that a wise policy demands that the

deliberate decisions of our higher courts should be of exceptional severity, but, without express

followed or at least respected. statutory enactment, trusts stand condemned

There is something of a distinction between the by the common law as combinations in restraint

doctrine of stare decisis and the doctrine of res adjuof trade in every State of the Union.

ilicata. The latter is Tragely a rule of evidence and

operates upon the particular case. It is more limiSTARE DECISIS.

ted in its scope than the former. In order to make

al matter res a ljudiсutu there must be a concurrence HE doctrine of stare decisis is peculiarly inter of four conditions, viz.: Identity in the thing sued

esting at this time in view of its recent discussion for; identity of the cause of action ; identity of and application in the income tax cases. It may persons and of parties; indentity of quality in the be safely asserted that no doctrine is so thoroughly persons. (2 Bouv. Law Dict. 167 and cuses cited.) fundamental, of such wide application and so vastly The object of this rule is to protect suitors from important in the law as that embodied in the maxim interminable litigation of the same questions. stare decisis, et non quieta movere. Adjudged cases The rule can be invoked only where there has are to juridical science what ascertained facts and

been a previous adjucation of the same matters in a experiments are to the natural sciences. On these

previous action by a court of competent jurisdicas a fouvdation the legal system grows, expands and tion and between the same parties or their privies. becomes symmetrical. Leading decisions are the On the other hand the doctrine of stare decisis mile-stones which mark the pathway of judicial pro operates upon priuciples of analogy. That it may



be invoked it is not necessary that there be an Where a decision has become thoroughly imbedidentity of parties or of facts. It is not confined inded in the law and has become a rule of property so its application to a subsequent questioning of the that vested rights are dependent on it for their exsame matters. It will be difficult to find two cases istence and continuance, such decision, though parallel in all respects where this doctrine has been erroneous in its inception, will be followed as applied. Similarity and not identity of issue and precedent in subsequent cases. of fact will be found to prevail.

Again, under the The law in regard to titles to real estate especirule of res adjuilicata, a decision though erroneous ally requires stability. As injurious as are frequent is absolutely conclusive upon the same matters be changes in the law, no decision as to personal proptween the same parties until that decision is re erty or damages requires such permanency as those versed. Under the rule of stare decisis a clearly relating to realty. Even one decision in the latter erroneous decision is not binding as a precedent

case will be scrupulously guarded. Titles to real except in certain cases which we will hereafter con

estate are sor all time, and should stand as passed sider. When a decision is rendered by a court of upon if possible. Titles may be largely or wholly ultimate appeal in any case, that decision must be dependent upon previous decisions, and landed inregarded as conclusive in that particular case.

terests would be jeopardized by sudden or frequent Where the question arises in a case similar to one

changes in interpretation or construction of legal already adjudicated in a prior case, while the force principles. (Lion v. Burtiss, 20 Johns. 487.) of precedent is strong, the court may overrule,

In this connection I quote from the argument of affirm or modify any previous decision.

In the Joseph H. Choate before the United States Supreme

“ The reason of the same case any ruling is final, in a different one it is Court in the income tax cases : only an established precedent. (23 Amer, & Eng.

rule is, that it is often better on public grounds,

- where Ency. of Law, p. 33, and cases cited.)

where a question of law has been decided Where a trust deed was adjudged to be void by it has been repeatedly decided — that the court the Appellate Court, that decision was held to be

should let it remain rather than, by the declaration the immutable law of the case to govern all sub

of another, though a better rule, dispense with it. sequent proceedings therein, notwithstanding that Where is that chiefly applied? Where ought it afterwards in another case a different decision was

chiefly to be applied? Where has it always been made on a similar deed. (Thompson v. Albert, 15

applied? When the former decision has grown into Md. 285.)

a rule of property, and vested rights in a trusting It seems that where there has been a solemn ad-community, relying upon the past decision, have judication by a court of last resort, the decision ren

become fixed, where rules of conduct have come to dered is the law of the particular case and will not

be governed by it, as in the making of contracts be disturbed upon a subsequent review on the and other arrangements between man and man and principle of res adjudicata; while viewing the between citizens and corporations, I acknowledge decision as a precedent, it may be followed, modi

that there may often be cases where less damage to fied or overruled.

the public, less injury upon the whole arises from “There are clear and palpable mistakes of law letting the bad rule stand. Everybody has acquiwhich should be corrected, especially where it can esced in the rule, everybody knows it to be the rule, be done without injury to any person or property. everybody has acquired his property under the rule, If no injury or injustice would result to any one, and made his contracts under the rule." and a future and permanent benefit would undoubt In Welch v. Sullivan (8 Cal. 188), the court said: edly result, the correction should be made at once. · Courts are permitted to exercise a wide discretion, No prior decision is to be reversed without good and judges are not expected or required to overturn and sufficient cause, yet the rule is not in any sense principles which have been considered and acted iron-clad, and the future and permanent good to

upon as correct, thereby disturbing contracts and the public is to be considered rather than any

property, and involving everything in inextricable particular case or interest.

Precedents confusion, simply because some abstract principle should not have an overwhelming or despotic in- of law has been incorrectly established at the outfluence in shaping legal decisions


set. The books are full of cases in which learned ever a correction can be made without working judges have acknowledged the errors committed by more harm than good, it should be done.

themselves or their predecessors, and at the same The reason that the rule of stare decisis was promul- time refused to overthrow the rule established. gated was on the ground of public policy, and it That judge, who, for petty vanity and for the sake would be an egregious mistake to allow more harm of showing himself more wise and learned than his than good to accrue from it.” (23 Amer. & Eng. predecessors, would overthrow a rule which for Ency. Law, p. 37.)

years bas settled the rights of property, should be

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regarded as the common enemy of mankind, and of this statute. We cannot change a decision withunworthy of the high trust that has been confideil out producing confusion in titles, as the ruling to him.” (See Bates v. Relyea, 23 Wend. 340.) would necessarily relate back to the time the law

In Harrow v. Myers, 29 Ind. 470, the court, speak- came in force. But if the canon of descent, as ing of real estate titlés, said: “The question at the settled by the determination of the court of last rethreshold is, whether a rule of property thus re sort, is unjust or even distasteful, the Legislature peatedly declared by the court of last resort after can change the rule without interfering with vested earnest contest, and, it must be supposed, upon the rights. As now constituted, however much we may most careful deliberation, should be deemed open differ from the opinions of our predecessors, we to further controversy. The repose of titles is im- shall not introduce doubt and confusion into quesportant to the public. Upon the faith of these tions of property by overruling the previous decisions our people have, for a considerable period decisions of this court. We have had occasion in of years, invested their money in real estate, the the last few months to overrule a number of cases, titles to which they were thus again and again but only in that class in which the rulings operate assured were not liable to be disturbed. There upon the future and not upon the past, and which, must be a just basis of confidence in the stability of in our opinion, will be attended by unmixed good.” judicial decision somewhere in the history of a con Rarely are the decisions of inferior courts foltroverted legal question, where it may be confidently lowed by the higher courts. On questions of the relied on that the question is settled. It is not construction or application of provisions of the always that the courts may freely inquire, in deter- Federal Constitution, of treaties and of Federal mining a case before them, what is the law. Some- law, the decisions of the United States Supreme times investigation should stop when it has been Court are binding upon the State courts. ascertained what has been decided upon the sul)- tions of the construction or interpretation of State ject. The doctrine of stare derisis should be ap- statutes or constitutions, the decisions of the court plied to the question now presented. Such is its of the State whose constitution or statue is in quesrelation to the interests of our people among whom tion are followed by the Federal Courts real estate is so much an article of traffic, that it is Equator Min., Etc., Co. v. Hall, 106 L'. S. 86 ; not possible to estimate the extent of the evil Hamilton Bank v. Dudley, 2 Pet. 492; East Hartwhich would follow a decision of this court over

ford v. Hartford Bridge Co., 10 How. 511 ; Chamruling Strong v. Clem (12 Ind. 37), and the cases

bers County v. Clews, 21 Wall, 3317 ; Union Bank v. which followed it. If the doctrine of those cases

Kansas City Bank, 136 U. S. 223 ; 23 Amer. & Eng. be admitted to be wrong, it is yet quite obvious Ency. Law, pp. 38–39. WALTER I. IIovER. that it has already accomplished most of the harm Amsterdam, N. Y. that ever can result from it; while a change now would sow a wide crop of scrious evils to the injury THE PEOPLE OF THE STATE V. WILLIAM of those who are innocent, and who have purchased

W. M'LAUGHLIN. and sold real estate upon the faith of a doctrine

GAYNOR, J.: The law does not cast upon me the declared by this court no less than half a dozen times within the last ten years."

duty of concluding whether error was actually com

mitted in the defendant's case. On the contrary In further illustration of this doctrine I quote the statute is that if any assigned error gives rise to from one more authority. In Rockhill v. Nelson,

"reasonable doubt whether the judgment should 24 Ind. 424, the court, speaking of a rule of clescent i stand,” it is my duty, without going further, to which had been assailed by argument, said: “This grant il certificate of reasonable doubt, to operate position so forcibly addressed to this court before

as a stay of the judgment pending appeal. I have the decision in the case of Martindale v. Martindale such doubt, and being unable to resolve it after (10 Ind. 566) would bave been entitled to grave careful deliberation, I must unhesitatingly respond consideration, and it is, indeed, difficult to see how to the injunction which the law lays upon me, and it could have been met by legal argument. But allow the stay, without regard to my personal inthere are some questions in the law the final settle- clivation. ment of which is vastly more important than how Whether this ruined defendant shall be impris. they are settled ; and among these are the rules of oned pending his appeal is insignificant indeed, property long recognized and acted upon, and under compared to the importance of maintaining a dewhich rights have vested. It must be admitted | liberate and orderly administration of criminal justhat our law of descents, among the most important tice, and the necessity of preserving tliose individual on our statute books, is not remarkable for precision rights which, while they shield the innocent and and clearness, and that vexatious questions are the unfortunate, do not protect the guilty. I have often occurring requiring judicial interpretation not merely this defendant's case in mind, but the

case of everyone hereafter to be tried for a criminal change bis place of trial, what followed ? He was offense.

confronted with a difficulty; for while the statute I shall specify two alleged errors. The defendant was explicit that he could bring on such a motion was tried in the Court of Oyer and Terminer. His only “upon notice of at least ten days to the Disfirst trial ended on Saturday, May 11, 1895, by a trict Attorney” (Code Crim. Proc. Sec. 346), bis disagreement of the jury. The case was at once set second trial had been set only nine days ahead, as down for another trial iv the same court nine days has been seen, and would therefore supersede his ahead, namely, on Monday, May 20. Counsel for motion, and make it useless. But the law did not defendant then decided to make a motion in the leave him in such evil case; for it provided that any Supreme Court for a change of the place of trial to justice of the Supreme Court might grant a stay of another county, on the ground that a fair and im- the trial until the motion should be heard and departial trial could not be had in the county of New cided (Code Crim. Proc. Sec. 347.) By the exercise York. They prepared a voluminous record for that of diligence the defendant's attorneys had the repurpose, setting forth that the difficulty of getting cord necessary to the motion ready in four days, impartial jurymen was so great that it took three viz., on Friday, May 17th; and regularly presenting weeks to get a jury on the first trial; that the de- the same to a justice of the Supreme Court on that liberation of the jury was marred by unusual pas- day, they obtained of him the temporary stay of the sion, those voting for acquittal reporting in open trial which the law allowed, until the motion should court that they were threatened with State's prison be heard, viz., on Monday, June 3rd. The followby those voting for conviction; that immediately ing morning, viz., Saturday, copies of the motion after the discharge of the disagreeing jurymen, papers, including the stay and notice of motion, their intelligence, honesty and motives were assailed

were served upon the district attorney. The dein public meetings and elsewhere, all of which was

fendant had acted strictly in accordance with law. reported in the newspapers; that in addition some He could not have noticed his motion for any day newspapers joined in the attack, which was also prior to the day set for the trial, for the statute, as levelled in advance against any jurors who should has been seen, required that he should give a notice vote for acquittal upon the second trial; and the of motion of not less than ten düys. defendant also claimed that the learned judge who On the following Monday morning, however, at presided at his first trial, and was also to preside at the unusual and irregular hour of six o'clock, the his second, participated in these public discussions district attorney caused to be served upon the dein a way adverse to a fair and calm consideration of fendant's attorney an order requiring the defendant his case, and calculated to deter jurymen from to show cause at 10:30 o'clock that same morning, being independent. In this state of things the de before the Special Term of the Supreme Court in fendant's counsel claimed that he had not had and New York city, why the defendant's motion to could not have in the county of New York that de- change the place of trial should not then there liberate, fair and impartial trial which the law “ forth with " proceed and be heard. The senior guarantees to everyone.

counsel for defendant was under engagement to be I need form no opinion as to the truth of these before the Court of Appeals at Albany on that allegations; it is enough that they were by no day, and went there. The junior counsel appeared means light or frivolous, and that defendant was before the Supreme Court at the hour required, and entitled to have them calmly heard; for the law, submitting affidavits bearing evidence of the untaught by the experience of the past, bad wisely so seemly haste in which he had been forced to preprovided. From the irregular and disorderly trial pare them, objected tờ the court proceeding, and, of Jesus down to the present time, history in almost denying its jurisiliction to do so, asked that a time every generation affords instances of trials conducted be set to argue the question of jurisdiction. The without due calmness and attention, in which some court refused the request, overruled every obtimes the innocent and sometimes the guilty were jection, and required the defendant to proceed at convicted; but invariably in either case with the once to present to it his motion to change the like effect in the end, that the conviction was place of trial. This his counsel refused to do. The generally deemed unjust, and proved more de- court thereupon made and entered an order to the moralizing and detrimental to social order than effect that the motion was heard and denied, and acquittal would have been. It is a maxim of manli- vacating the stay, but reciting the refusal of defendness and healthy human nature as old as the human ant to make the motion before it, and thereupon race that one who cannot be convicted by fair play the Court of Oyer and Terminer, which had awaited should not be convicted at all.

the outcome, immediately commenced the trial of the The defendant having decided, as was his unques-defendant, against the objection of his counsel that tionable legal right, to move the Supreme Court to the Supreme Court had acted without jurisdiction,

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