justice administered is scarcely deserving of the name of law, however greatly it may fall in with the ethical notions of the community as regards any particular case. On the other hand, when rules become so fixed and rigid that they are difficult or impossible to change, the law is out of touch with prevailing moral ideas, which like all other ideas are constantly progressing; the law thus necessarily becomes a clog upon national development, an incentive to revolutionary reform.

Among semi civilized people, absolute adhesion to the letter of the law is the prevailing system. In the ancient Roman law of the twelve tables, contracts in order to have any validity had to be made with specific formulae, or the repetition of certain particular words. It was not the substance of the contract relation-that is to say, the meeting of the minds and the consent of the parties as to the subject matter of the contract-that was looked to, but the formalities by which that meeting was evidenced. The sanctity attached to the use of a seal attests the mystic value of forms among primitive peoples.

In the ancient common law, before the growth of the equitable jurisdiction of the chancery, we see the same condition. It is illustrated by the story of the individual who, going into a silk merchant's, asked the merchant for how much he would sell him enough silk to go from ear to ear, and the merchant immediately named the price. Thereupon the purchaser, lifting his cap, showed him a place where the ear should be, and pointing to his remaining ear, said: "My other ear is at Newgate."' As the ancient story goes, the merchant was forced to give him several hundred yards of silk for the price of a few inches. The same story is told in different forms and is apparently an Indo-European legal legend.

Again we find a literal adherence to the letter of the contract in the blacksmith case. An ignorant individual offered to give a blacksmith two pence for the first nail, four pence for the second and eight pence for the third, and so forth. When the four feet were shod he found that it had cost him a number of pounds, owing to his absolute ignorance of the laws of geometrical progression. Nevertheless, he was held to the letter of his bargain.

Again, in the medieval world, trial by ordeal supplanted to a great degree the rational methods of determining facts. There was no doubt felt of the guilt of the man whose feet were burned by walking on red hot iron, and this method had the

advantage of leaving open no questions for dispute. But with the growth of modern civilization, came the necessity of apply. ing to cases a general ethical standard to some degree at least in accordance with that of the age.

Nevertheless a fair degree of certainty is a necessity in every system of law; as a consequence, the common law doctrine of Stare Decisis was gradually evolved by the common law courts as one mode of bringing about some sort of coherence in the justice administered and in formulating that justice into rules of law. That the doctrine is an old one does not admit of doubt and modern research seems to indicate that it was first vaguely adumbrated as far back as the fourteenth century. The truth is that the doctrine is founded upon one of the peculiarities of human nature which in its ultimate analysis is based upon the imitative faculty in man. The mass of men will naturally follow in a beaten track, rather than branch out into new and untrodden ways, and the courts naturally fell into the habit of following precedent, just as merchants fall into the habit of following certain usages of trade which after a time harden into customs. In this way the judges by making a line of uniform decisions on any question create a judicial custom which in its turn acquires, almost unconsciously, the force of law.

That the English courts have gone much farther than our own in upholding the dignity of the doctrine of Stare Decisis, may be easily illustrated by one or two prominent instances. In 1843 the fainous case of Queen v. Millis (10 C. and F. 534) came before the House of Lords. The case was a prosecution for bigamy. The question there involved was as to whether a marriage contract in Ireland, without the presence of an ordained clergyman or priest of the Church of England, was valid. The Marriage Act not applying there, the common law alone governed. It was contended that in England the presence of a priest had been absolutely necessary to such marriage by the rule of the canon law prevailing throughout western Christendom, up to the time of the decree of the Council of Trent, which, owing to the separation of the Church of England from the Roman Catholic Church, had not gone into force there. The House of Lords, however, decided from one or two precedents, which historic research has now discovered were erroneously interpreted, that the law of England in this particular was different from that of the rest of Western Europe and that a marriage without the presence of such priest was invalid. The decision

was reached by a divided court, the members of that tribunal standing three to three, the form of the question, however, being such that the decision was necessarily in favor of the validity of the marriage.

In 1861 this historically erroneous decision, reached by an equally divided court, was brought in question before the same tribunal in the case of Beemish v. Beemish (IX H. L. 275). The very same question being again presented, a majority, at least, of the judges were of the opinion that the decision of Queen v. Millis was reached upon a false historical basis and that the precedents adduced from the early English law to support that decision, were misunderstood by the court. Lord Campbell himself took that view. The court nevertheless felt bound to follow that case and decided, contrary to the historic fact, that a marriage without the presence of a clergyman of the Church of England was and always had been invalid at the common law.

In rendering this decision, Lord Campbell said that he felt himself bound by the doctrine of Stare Decisis and that to depart therefrom would be a usurpation upon the part of the House of Lords. His theory was that the law once laid down by that tribunal became the law of the land, was binding upon the trib. unal itself, as well as upon every other subject, and was changeable only by the supreme authority of Parliament. This case contains the strongest utterances that I have been able to find upholding the absolute obligation of the rule of Stare Decisis. "Had the present case been brought here by writ of error previously to the decision of this House in the year 1844 in the case of Queen v. Millis, I should not have hesitated in advising your Lordships to affirm the judgment in favor of the validity of the marriage and the legitimacy of the respondent.'

After giving his reasons for believing that a marriage without the presence of a priest was valid at the common law, he continues: "However it must now be considered as having been determined by this House that there could never have been a valid marriage in England before the Reformation, without the presence of a priest episcopally ordained, or afterward without the presence of a priest or of a deacon. . My Lords, the decision in the case of the Queen v. Millis that unless a priest especially ordained was present at the marriage ceremony the marriage was null and void and the children of the marriage were illegitimate, seemed to me so unsatisfactory, that I deemed it my duty to resort to the extraordinary proceeding of entering a protest against it on your Lordships' journal."

And yet he continues: "But it is my duty to say that your Lordships are bound by this decision as much as if it had been pronounced nemine dissentiente and that the rule of law which your Lordships lay down as the ground of your judgment, sitting judicially, as the last and Supreme Court of Appeal for this Empire, must be taken for law till altered by an act of Parliament agreed to by the Commons and the Crown as well as by your Lordships. The law laid down as your ratio decidendi being clearly binding on all inferior tribunals and on all the rest of the Queen's subjects, if it were not considered as equally binding upon your Lordships, this House would be arrogating to itself the right of altering the law and legislating by its own separate authority." The fiery law reformer, Bentham, in his dread of judicial encroachment could hardly have gone farther in limiting the power of appellate courts.

It must be remembered, however, that even in England that useful and somewhat modern instrument-the distinction-is not unknown and the results of strict adherence to Stare Decisis may in many cases be escaped or mitigated by the use of that now highly-developed weapon, even where to the ordinary mind the distinction would not seem to involve even an appreciable difference.

It is a rather curious thing that Lord Campbell's views, which, at the time of their utterance, seemed to be in every respect most conservative, were enunciated in almost the same language by Mr. William J. Bryan in his campaign as nominee of the Democratic Party for the Presidency in 1896. At that time he was generally looked upon as a radical, if nothing worse, and his views as to the Supreme Court were the subject of most severe strictures. I do not intend to comment upon their wisdom or unwisdom, but his underlying view, as I understand it, was that the Supreme Court once having passed upon a question, that decision became the law of the land and was binding upon that august tribunal as well as upon all other American citizens. That view, which to many seemed so startling as to savor of revolution, in any event had in it nothing of novelty, and if Mr. Bryan did not cite the authority of Lord Campbell, it was probably because he had overlooked it. Whether the doctrine as enunciated by him would have sounded less harsh had it been backed by the authority of that great name, it is impossible to say. In the heat of political conflict it might have mattered little.

It is a significant fact, however, that the same doctrine

should be considered as over-conservative or as over-radical, dependent upon the position of the person announcing it and the circumstances of its announcement.

Mr. Justice Holmes, one of the greatest students of the development of English law, adopts what would seem to be a very different standpoint. He believes the judge-made law to be a slow and steady growth which must adapt itself to present needs and present necessities, and that the formal rules of the syllogism do not and should not be allowed to fetter the judges in reaching a result compatible with present ethical notions and sound public policy.

"On the other hand, in substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the ground to which they have been transplanted."

This latter view would seem to be the one more generally prevalent in the United States. The highest courts, although expressing great regard for the doctrine of Stare Decisis, do not hesitate to overrule prior decisions upon the ground that they were erroneously rendered, as the Supreme Court itself has done upon several occasions and notably in the legal tender and income tax cases and the passenger cases. The soundness of this latter view depends upon how far conformity to present standards of justice is more important than certainty as to what the law actually is. It would surely be better if more cases were overruled directly than by the indirect method of the distinction.

By the indirect method a case once deemed to be law is