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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 to the law. Mr. Freeman in this connection marks a change in language which has happened within his own memory, and which, like other changes in language, is certainly not without its meaning. 'We now,' he says, 'familiarly speak in Parliament and out of Parliament of the body of ministers actually in power, the body known to the Constitution, but wholly unknown to the law, by the name of the government.' We speak of Mr. Gladstone's government' or 'Mr. Disraeli's government.' I can myself remember the time when such a form of words was unknown, when government' still meant 'government by king, lords and commons,' and when the body of men who acted as the king's immediate advisers were spoken of as 'ministers' or 'the ministry.'' (Growth of the English Constitution,' pp. 123, 124.) We have seen, likewise, the practice of the Constitution renders it quite incompatible with honor or self-respect for ministers to retain office whose public action has been condemned by the House

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of Commons. The establishment of this principle is, however, very recent. Mr. Pitt, towards the end of the last century, kept office in defiance of repeated votes of the House of Commons, and at last by a dissolution at a wellchosen moment showed that the country was on his side. Such conduct would at the present time be regarded as highly unconstitutional. Again, the cabinet, which is, of course, the mainspring of our constitutional system- 'the hyphen,' to use the words of Mr. Bagehot,

The full text of the decision of the Illinois Supreme Court on the whisky trust case has just been published. It contains a somewhat extended reference, not alluded to in the newspaper summary, in regard to the position of the courts of various States toward the monopolistic combinations known as trusts, premising that, while the proceedings instituted against these combinations have generally had for their object some of the corporations entering into the trust, and not the trust itself, the Illinois judges point out that, so far as the courts have had occasion to speak on the subject at all, they have held such trusts to be illegal. In Nebraska suit was brought against a distilling company which had become a party to the whisky trust, and in holding this action to be an abuse of its corporate powers, and therefore ultra vires, the court took the position that the trust, having a tendency to destroy competition and to create monopoly, was contrary to public policy, and unlawful. So in the Ohio case of a corporation which had entered the Standard oil trust, the court, after referring to

the monopolistic purpose of the latter organiza-
tion, declared all such associations to be con-
trary to the policy of the State and void. The
New York to vacate the charter of the North
proceeding brought by the attorney-general of
coming a member of the sugar trust brought
River Refining Company for its action in be-
Term of the Supreme Court to the effect that
out opinions from both the Special and General
the trust was organized for an unlawful pur-
pose,
and that the action of the defendant cor-

its dissolution. The Court of Appeals affirmed the judgment of the courts below without expressing an opinion as to the legality of the trust.

'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 the State,' is not mentioned by writers like Blackstone and De Lolme. 'The cabinet,' says Lord Macaulay, 'strange to say, still continues to be altogether unknown to the law, the names of the noblemen and gentlemen who compose it are never officially announced to the public, no record is kept of its meetings and resolutions, nor has its existence ever been recognized by act of parliament.' These illustrations, which might be indefinitely multiplied from circumstances attending the present ministerial crisis, prove the importance of that unwritten

More directly, the legal status of the Diamond Match Company came up before the Michigan courts on a motion to enjoin the sale of some of the stock of the company held as security for a loan made to procure its purchase. It was shown that the object of this corporation was to buy up the property of all individuals and corporations engaged in the manufacture of friction matches, exacting from

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the seller in every case a bond that he would not, for a term of years, engage in or assist any one else in the manufacture of matches in any place where his action might conflict with the interest or diminish the profits of the Diamond Match Company. The appellate court declared the purposes of the company to be unlawful, and it was held that any contract made to further them was void, as against public policy, and such as the court would neither enforce while executory, nor relieve against when executed.

gress. The importance, then, of this doctrine is at once apparent.

The rule has to do only with direct decisions upon important and vital issues. The decision (not dicta) of our higher courts furnish precedents which are to control the future disposition of similar issues. The binding authority of adjudged cases is called. for on grounds of public policy and convenience. In Harris v. Clark, 2 Barb. 94, when pressed with a former decision, Gridley, J., responded as follows: "In opposition to this doctrine, however, the case of Wright v. Wright (1 Cow. 598), is pressed upon us as an authoritative adjudication which we are bound to follow. We believe in a rigid adherence to the doctrine of stare decisis. We regard it as necessary to preserve the stability, the certainty and the symmetry of any system of jurisprudence; and therefore, if we had any reason to believe that the decision in this case was made upon deliberate consideration, and that the adoption of the reasons assigned by the judge was necessary to the decision of the question before the court, we should certainly regard it as an authority binding upon us and leave the error, if any there were, to be corrected in the court of last resort."

The whisky trust decision makes an important addition to these judicial rulings, because it brushes aside the defense greatly relied on by the trusts that monopolistic combinations cannot be charged when there is but one corporation in the case. In other words, while it may be unlawful for two or more corporations to combine to control production or stifle competition, the moment they lose their individuality and become merged in one corporate organization, they cease to be obnoxious to anti-trust law. But the Illinois court holds that if a trust agreement between individuals or corporations be repugnant to public policy and illegal, it is impossible to see why the same is not true of the corporation of which it is the basis. "There is no magic in a corporate organization which can purge the trust scheme 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 will see a premonition of coming dissolution. The anti-trust law of Illinois happens to be one of exceptional severity, but, without express statutory enactment, trusts stand condemned by the common law as combinations in restraint of trade in every State of the Union.

STARE DECISIS.

HE doctrine of stare decisis is peculiarly interTHE esting at this time in view of its recent discussion and application in the income tax cases. It may be safely asserted that no doctrine is so thoroughly fundamental, of such wide application and so vastly important in the law as that embodied in the maxim stare decisis, et non quieta movere. Adjudged cases are to juridical science what ascertained facts and experiments are to the natural sciences. On these as a foundation the legal system grows, expands and becomes symmetrical. Leading decisions are the mile-stones which mark the pathway of judicial pro

The knowledge that a judicial decision is to form a part of the substantive law, that it is to operate as a rule of civil conduct, that it is to control similar controversies in the future, begets a more careful and conscientious consideration on the part of the court, and inspires a more profound respect for the court and its decisions on the part of the public. Were the solemn utterances of the court upon a vital

fluence upon subsequent litigation, clients would be wholly ignorant of their rights and counsel helpless to advise. So that a wise policy demands that the deliberate decisions of our higher courts should be followed or at least respected.

There is something of a distinction between the doctrine of stare decisis and the doctrine of res adjudicata. The latter is Iragely a rule of evidence and operates upon the particular case. It is more limited in its scope than the former. In order to make a matter res adjudicata there must be a concurrence of four conditions, viz.: Identity in the thing sued for; identity of the cause of action; identity of persons and of parties; indentity of quality in the persons. (2 Bouv. Law Dict. 467 and cases cited.) The object of this rule is to protect suitors from interminable litigation of the same questions.

The rule can be invoked only where there has been a previous adjucation of the same matters in a previous action by a court of competent jurisdiction and between the same parties or their privies. On the other hand the doctrine of stare decisis operates upon principles of analogy. That it may

be invoked it is not necessary that there be an identity of parties or of facts. It is not confined in its application to a subsequent questioning of the same matters. It will be difficult to find two cases parallel in all respects where this doctrine has been applied. Similarity and not identity of issue and of fact will be found to prevail. Again, under the rule of res adjudicata, a decision though erroneous is absolutely conclusive upon the same matters between the same parties until that decision is reversed. Under the rule of stare decisis a clearly erroneous decision is not binding as a precedent except in certain cases which we will hereafter consider. When a decision is rendered by a court of ultimate appeal in any case, that decision must be regarded as conclusive in that particular case. Where the question arises in a case similar to one already adjudicated in a prior case, while the force of precedent is strong, the court may overrule, affirm or modify any previous decision. In the same case any ruling is final, in a different one it is only an established precedent. (23 Amer. & Eng. Ency. of Law, p. 33, and cases cited.)

Where a trust deed was adjudged to be void by the Appellate Court, that decision was held to be the immutable law of the case to govern all subsequent proceedings therein, notwithstanding that afterwards in another case a different decision was

made on a similar deed. (Thompson v. Albert, 15 Md. 285.)

It seems that where there has been a solemn adjudication by a court of last resort, the decision rendered is the law of the particular case and will not be disturbed upon a subsequent review on the principle of res adjudicata; while viewing the decision as a precedent, it may be followed, modified or overruled.

"There are clear and palpable mistakes of law which should be corrected, especially where it can be done without injury to any person or property. If no injury or injustice would result to any one, and a future and permanent benefit would undoubtedly result, the correction should be made at once. No prior decision is to be reversed without good and sufficient cause, yet the rule is not in any sense iron-clad, and the future and permanent good to the public is to be considered rather than any * or interest. particular case Precedents should not have an overwhelming or despotic influence in shaping legal decisions whenever a correction can be made without working more harm than good, it should be done. The reason that the rule of stare decisis was promulgated was on the ground of public policy, and it would be an egregious mistake to allow more harm than good to accrue from it." (23 Amer. & Eng. Ency. Law, p. 37.)

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Where a decision has become thoroughly imbedded in the law and has become a rule of property so that vested rights are dependent on it for their existence and continuance, such decision, though erroneous in its inception, will be followed as a precedent in subsequent cases.

"The reason of the

where

The law in regard to titles to real estate especially requires stability. As injurious as are frequent changes in the law, no decision as to personal property or damages requires such permanency as those relating to realty. Even one decision in the latter case will be scrupulously guarded. Titles to real estate are for all time, and should stand as passed upon if possible. Titles may be largely or wholly dependent upon previous decisions, and landed interests would be jeopardized by sudden or frequent changes in interpretation or construction of legal principles. (Lion v. Burtiss, 20 Johns. 487.) In this connection I quote from the argument of Joseph H. Choate before the United States Supreme Court in the income tax cases: rule is, that it is often better on public grounds, where a question of law has been decided it has been repeatedly decided that the court should let it remain rather than, by the declaration of another, though a better rule, dispense with it. Where is that chiefly applied? Where ought it chiefly to be applied? Where has it always been applied? When the former decision has grown into a rule of property, and vested rights in a trusting community, relying upon the past decision, have become fixed, where rules of conduct have come to be governed by it, as in the making of contracts and other arrangements between man and man and between citizens and corporations, I acknowledge that there may often be cases where less damage to the public, less injury upon the whole arises from letting the bad rule stand. Everybody has acquiesced in the rule, everybody knows it to be the rule, everybody has acquired his property under the rule, and made his contracts under the rule."

In Welch v. Sullivan (8 Cal. 188), the court said: "Courts are permitted to exercise a wide discretion, and judges are not expected or required to overturn principles which have been considered and acted upon as correct, thereby disturbing contracts and property, and involving everything in inextricable confusion, simply because some abstract principle of law has been incorrectly established at the outset. The books are full of cases in which learned

judges have acknowledged the errors committed by themselves or their predecessors, and at the same time refused to overthrow the rule established. That judge, who, for petty vanity and for the sake of showing himself more wise and learned than his predecessors, would overthrow a rule which for years has settled the rights of property, should be

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regarded as the common enemy of mankind, and unworthy of the high trust that has been confided to him." (See Bates v. Relyea, 23 Wend. 340.)

of this statute. We cannot change a decision without producing confusion in titles, as the ruling would necessarily relate back to the time the law came in force. But if the canon of descent, as settled by the determination of the court of last resort, is unjust or even distasteful, the Legislature can change the rule without interfering with vested rights. As now constituted, however much we may differ from the opinions of our predecessors, we shall not introduce doubt and confusion into questions of property by overruling the previous decisions of this court. We have had occasion in

the last few months to overrule a number of cases, but only in that class in which the rulings operate

in our opinion, will be attended by unmixed good."
Rarely are the decisions of inferior courts fol-
lowed by the higher courts. On questions of the
construction or application of provisions of the
Federal Constitution, of treaties and of Federal
law, the decisions of the United States Supreme
Court are binding upon the State courts.
On ques-
tions of the construction or interpretation of State
statutes or constitutions, the decisions of the court
of the State whose constitution or statue is in ques-
tion are followed by the Federal Courts.

In Harrow v. Myers, 29 Ind. 470, the court, speaking of real estate titles, said: "The question at the threshold is, whether a rule of property thus repeatedly declared by the court of last resort after earnest contest, and, it must be supposed, upon the most careful deliberation, should be deemed open to further controversy. The repose of titles is important to the public. Upon the faith of these decisions our people have, for a considerable period of years, invested their money in real estate, the titles to which they were thus again and again assured were not liable to be disturbed. Thereupon the future and not upon the past, and which, must be a just basis of confidence in the stability of judicial decision somewhere in the history of a controverted legal question, where it may be confidently relied on that the question is settled. It is not always that the courts may freely inquire, in determining a case before them, what is the law. Sometimes investigation should stop when it has been ascertained what has been decided upon the subject. The doctrine of stare decisis should be applied to the question now presented. Such is its relation to the interests of our people among whom real estate is so much an article of traffic, that it is not possible to estimate the extent of the evil which would follow a decision of this court overruling Strong v. Clem (12 Ind. 37), and the cases which followed it. If the doctrine of those cases be admitted to be wrong, it is yet quite obvious that it has already accomplished most of the harm that ever can result from it; while a change now would sow a wide crop of serious evils to the injury THE PEOPLE OF THE STATE V. WILLIAM of those who are inuocent, and who have purchased and sold real estate upon the faith of a doctrine declared by this court no less than half a dozen times within the last ten years."

In further illustration of this doctrine I quote from one more authority. In Rockhill v. Nelson, 24 Ind. 424, the court, speaking of a rule of descent which had been assailed by argument, said: "This position so forcibly addressed to this court before the decision in the case of Martindale v. Martindale (10 Ind. 566) would have been entitled to grave consideration, and it is, indeed, difficult to see how it could have been met by legal argument. But there are some questions in the law the final settlement of which is vastly more important than how they are settled; and among these are the rules of property long recognized and acted upon, and under which rights have vested. It must be admitted that our law of descents, among the most important on our statute books, is not remarkable for precision and clearness, and that vexatious questions are often occurring requiring judicial interpretation

Equator Min., Etc., Co. v. Hall, 106 U. S. 86; Hamilton Bank v. Dudley, 2 Pet. 492; East Hartford v. Hartford Bridge Co., 10 How. 511; Chambers County v. Clews, 21 Wall, 317; Union Bank v. Kansas City Bank, 136 U. S. 223; 23 Amer. & Eng. Ency. Law, pp. 38-39. WALTER I. HOVER. Amsterdam, N. Y.

W. M'LAUGHLIN.

GAYNOR, J.: The law does not cast upon me the

duty of concluding whether error was actually committed in the defendant's case. On the contrary the statute is that if any assigned error gives rise to "reasonable doubt whether the judgment should stand," it is my duty, without going further, to grant a certificate of reasonable doubt, to operate as a stay of the judgment pending appeal. I have such doubt, and being unable to resolve it after careful deliberation, I must unhesitatingly respond to the injunction which the law lays upon me, and allow the stay, without regard to my personal inclination.

Whether this ruined defendant shall be imprisoned pending his appeal is insignificant indeed, compared to the importance of maintaining a deliberate and orderly administration of criminal justice, and the necessity of preserving those individual rights which, while they shield the innocent and the unfortunate, do not protect the guilty. I have not merely this defendant's case in mind, but the

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

I shall specify two alleged errors. The defendant was tried in the Court of Oyer and Terminer. His first trial ended on Saturday, May 11, 1895, by a disagreement of the jury. The case was at once set down for another trial in the same court nine days ahead, namely, on Monday, May 20. Counsel for defendant then decided to make a motion in the Supreme Court for a change of the place of trial to another county, on the ground that a fair and impartial trial could not be had in the county of New York. They prepared a voluminous record for that purpose, setting forth that the difficulty of getting impartial jurymen was so great that it took three weeks to get a jury on the first trial; that the deliberation of the jury was marred by unusual passion, those voting for acquittal reporting in open court that they were threatened with State's prison by those voting for conviction; that immediately after the discharge of the disagreeing jurymen, their intelligence, honesty and motives were assailed in public meetings and elsewhere, all of which was reported in the newspapers; that in addition some newspapers joined in the attack, which was also levelled in advance against any jurors who should vote for acquittal upon the second trial; and the defendant also claimed that the learned judge who presided at his first trial, and was also to preside at his second, participated in these public discussions in a way adverse to a fair and calm consideration of his case, and calculated to deter jurymen from being independent. In this state of things the defendant's counsel claimed that he had not had and could not have in the county of New York that deliberate, fair and impartial trial which the law guarantees to everyone.

I need form no opinion as to the truth of these allegations; it is enough that they were by no means light or frivolous, and that defendant was entitled to have them calmly heard; for the law, taught by the experience of the past, had wisely so provided. From the irregular and disorderly trial of Jesus down to the present time, history in almost every generation affords instances of trials conducted without due calmness and attention, in which sometimes the innocent and sometimes the guilty were convicted; but invariably in either case with the like effect in the end, that the conviction was generally deemed unjust, and proved more demoralizing and detrimental to social order than acquittal would have been. It is a maxim of manliness and healthy human nature as old as the human race that one who cannot be convicted by fair play should not be convicted at all.

The defendant having decided, as was his unquestionable legal right, to move the Supreme Court to

He was

confronted with a difficulty; for while the statute was explicit that he could bring on such a motion only "upon notice of at least ten days to the District Attorney" (Code Crim. Proc. Sec. 346), his second trial had been set only nine days ahead, as has been seen, and would therefore supersede his motion, and make it useless. But the law did not leave him in such evil case; for it provided that any justice of the Supreme Court might grant a stay of the trial until the motion should be heard and decided (Code Crim. Proc. Sec. 347.) By the exercise of diligence the defendant's attorneys had the record necessary to the motion ready in four days, viz., on Friday, May 17th; and regularly presenting the same to a justice of the Supreme Court on that day, they obtained of him the temporary stay of the trial which the law allowed, until the motion should be heard, viz., on Monday, June 3rd. The following morning, viz., Saturday, copies of the motion papers, including the stay and notice of motion, were served upon the district attorney. The defendant had acted strictly in accordance with law. He could not have noticed his motion for any day prior to the day set for the trial, for the statute, as has been seen, required that he should give a notice of motion of not less than ten days.

On the following Monday morning, however, at the unusual and irregular hour of six o'clock, the district attorney caused to be served upon the defendant's attorney an order requiring the defendant to show cause at 10: 30 o'clock that same morning, before the Special Term of the Supreme Court in New York city, why the defendant's motion to change the place of trial should not then there "forthwith " proceed and be heard. The senior counsel for defendant was under engagement to be before the Court of Appeals at Albany on that day, and went there. The junior counsel appeared before the Supreme Court at the hour required, and submitting affidavits bearing evidence of the unseemly haste in which he had been forced to prepare them, objected to the court proceeding, and, denying its jurisdiction to do so, asked that a time be set to argue the question of jurisdiction. The court refused the request, overruled every objection, and required the defendant to proceed at once to present to it his motion to change the place of trial. This his counsel refused to do. The court thereupon made and entered an order to the effect that the motion was heard and denied, and vacating the stay, but reciting the refusal of defendant to make the motion before it, and thereupon the Court of Oyer and Terminer, which had awaited the outcome, immediately commenced the trial of the defendant, against the objection of his counsel that the Supreme Court had acted without jurisdiction,

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