tration of justice, and the same measure that is meted out to one would be received by all others. And even if the 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 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: 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

11 Kent, 475. And see Cro. Jac. 527; Rex v. Cox, 2 Burr. 787; King v. Younger, 5 T. R. 450; Goodtitle v. Otway, 7 T. R. 416; Selby v. Bardons, 3 B. & Ad. 17; Fletcher v. Lord Somers, 3 Bing. 588; Hammond v. Anderson, 4 Bos. & P. 69; Lewis v. Thornton, 6 Munf. 94; Dugan v. Hollins, 13 Md. 149; Anderson v. Jack

son, 16 Johns. 382; Goodell v. Jackson, 20 Johns. 693; Bates v. Relyea, 23 Wend. 336; Emerson v. Atwater, 7 Mich. 12; Nelson . Allen, 1 Yerg. 360; Palmer v. Lawrence, 5 N. Y. 389; Kneeland v. Milwaukee, 15 Wis. 454; Boon v. Bowers, 30 Miss. 246; Frink v. Darst, 14 Ill. 304; Broom's Maxims, 109. Dr. Lieber thinks

The doctrine of stare decisis, however, is only applicable, in its full force, within the territorial jurisdiction of the courts making the decisions, since there alone can 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.1

Great Britain and the thirteen original States had each substantially the same system of common 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 has been given it in such last-mentioned State, it is but just to regard the construction as having 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

1 Bond v. Appleton, 8 Mass. 472; Rutland v. Mendon, 1 Pick. 154; Commonwealth v. Hartnett, 3 Gray, 450; Turnpike Co. v. People, 9 Barb. 167; Campbell v. Quinlin, 4 Ill. 288; Little v. Smith, 5 Ill. 400; Rigg v. Wilton, 13 Ill. 15; Tyler ". Tyler, 19 Ill. 151; Fisher v. Deering. 60 Ill. 114; Langdon v. Applegate, 5 Ind. 327; Clark v. Jeffersonville, &c. R. R. Co., 44 Ind. 248; Fall v. Hazelrigg, 45 Ind. 576; Ingraham v. Regan, 23 Miss. 213; Adams v. Field, 21 Vt. 256; Drennan v. People, 10 Mich. 169; Daniels v. Clegg, 28 Mich. 32; Harrison v. Sager, 27 Mich. 476; Pangborn v. Westlake, 36 Iowa, 546; Attorney-General v. Brunst, 3 Wis. 787; Poertner v. Russell, 33 Wis. 193; Myrick v. Hasey, 27 Me. 9; People v. Coleman, 4 Cal. 46; Bemis v. Becker, 1 Kan. 226; Walker v. Cincinnati, 21 Ohio St. 14; Hess v. Pegg, 7 Nev. 23; Freeze v. Tripp, 70 Ill. 496; In re Tuller, 79 Ill. 99; Ex parte Mathews, 52 Ala. 51; Danville. Pace, 25 Gratt. 1; Bradbury v. Davis, 5 Col. 265. 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, 5 Ill. 400; Lessee of Gray v. Askew, 3 Ohio, 466; Jamison v. Burton, 43 Iowa, 282. It has very properly been held that the legislature, by enacting, without material alteration, a statute which had been judicially expounded by the highest court of the State, must be presumed to have intended that the same words should be received in the new statute in the sense which had been attributed to them in the old. Grace v. McElroy, 1 Allen, 563; Cronan v. Cotting, 104 Mass. 245; Low v. Blanchard, 116 Mass. 272. It is proper to accept and follow the decisions of courts of another State upon the construction and validity of their own statutes. Sidwell v. Evans, 1 Pen. & W. 383; s. c. 21 Am. Dec. 387; Bank of Illinois v. Sloo, 16 La. 539; s. c. 35 Am. Dec. 223, except when it conflicts with the constitution of the adopting State. Risser v. Hoyt, 53 Mich. 185.

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 left to the legislature, which can control its action so as to make it prospective only, and thus prevent unjust consequences.1

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 a 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

1 "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. 246, 260. See also Emerson v. Atwater, 7 Mich. 12; Rothschild v. Grix, 31 Mich. 150; Loeb v. Mathis, 37 Ind. 306; Pond v. Irwin, 15 N. E. Rep. 272 (Ind.), Paulson v. Portland, 19 Pac. Rep. 450 (Oreg.); Adams Co. v. Burlington & M. R. R. Co., 55 Iowa, 94; Davidson v. Briggs, 61 Iowa, 309; State v. Whitworth, 8 Lea, 594. Where an old constitution has been construed by the court, a new court after the adoption of a new constitution will follow the old construction without regard to its own views. Emery v. Reed, 65 Cal. 351.

"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. 603, 609 And see Kneeland v. Milwaukee, 15 Wis. 454; Taylor v. French, 19 Vt. 49; Bellows v. Parsons, 13 N. H. 256; Hannel v Smith, 15 Ohio, 134; Day v. Munson, 14 Ohio St. 488, Green Castle, &c. Co. v. State, 28 Ind. 382, Harrow v Myers, 29 Ind. 469; Paul v. Davis, 100 Ind 422; Burks v Hinton, 77 Va. 1; Mead v. McGraw, 19 Ohio St. 55; Linn Minor, 4 Nev. 462, Willis v. Owen, 43 Texas, 41, 48; Ram on Legal Judgment, c. 14, § 3. Common error ,, does not make law until sanctioned by a superior tribunal, and subsequently treated as law in business affairs. Ocean Beach Ass. v. Brinley, 34 N. J. Eq. 438.

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 its own reasons; mixed motives of power, justice, and policy influence its action; and it is always justifiable and laudable to lean against a violation of the constitution. Indeed, cases must sometimes occur when a court should refrain from declaring a statute unconstitutional, because not clearly satisfied that it is so, though, if the judges were to act as legislators upon the question of its enactment, they ought with the same views to withhold their assent, from grave doubts upon that subject. The duty is different in the two cases, and presumptions may control in one which do not exist in the other.2 But those cases where new legislation is sought stand by themselves, and are not precedents for those which involve only considerations concerning the constitutional validity of existing enactments. The general acceptance of judicial decisions as authoritative, by each and all, can alone prevent ¡ confusion, doubt, and uncertainty, and any other course is incompatible with a true government of law.

Construction to be Uniform.

A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is

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 Supreme Court, and President Lincoln expressed similar views regarding the conclusiveness of the Dred Scott decision upon executive and legislative action. See Story on Const. (4th ed.) § 375, note. It is notorious that while the reconstruction of States was going on, after the late civil war, Congress took especial pains in

some cases to so shape its legislation that the federal Supreme Court should have no opportunity to question and deny its validity.

2 A constitution forbade the payment of any claim arising against the State under any agreement made without authority of law. It was held that this did not prevent the legislature from awarding pay for work done under an act which after its completion had been declared unconstitutional; that the word "law" did not necessarily mean a constitutional law. Miller v. Dunn, 72 Cal. 462.