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GLANVILL, Preface. (Beames's translation.)
Each decision is governed by the Laws of the Realm, and by those Customs which, founded on reason in their introduction, have for a long time prevailed; and, what is still more laudable, our King disdains not to avail himself of the advice of such men (although his subjects) whom, in gravity of manners, in skill in the Law and Customs of the Realm, in the superiority of their wisdom and Eloquence, he knows to surpass others, and whom he has found by experience most prompt, as far as consistent with reason, in the administration of Justice, by determining Causes and ending suits, acting now with more severity, and now with more lenity, as they see most expedient. For the English Laws, although not written, may as it should seem, and that without any absurdity, be termed Laws, (since this itself is a Law-that which pleases the Prince has the force of Law) I mean, those Laws which it is evident were promulgated by the advice of the Nobles and the authority of the Prince, concerning doubts to be settled in their Assembly. For, if from the mere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer more authority upon Laws themselves, than either the Equity of the persons constituting, or the reason of those framing them. But, to reduce in every instance the Laws and Constitutions of the Realm into writing, would be, in our times, absolutely impossible, as well on account of the ignorance of writers, as of the confused multiplicity of the Laws.
MARKBY, ELEMENTS OF LAW, secs. 90, 91, 92.
90. The resource of the English lawyers when called on to fill the gap which was elsewhere supplied by the Roman Law was custom. Of this custom the judges were themselves, in the last resort, the repository. But the judges usually observed a discreet. silence as to the source from which they derived the rules upon which their decisions were based. Here and there a judge or a counsel arguendo would mention a precedent, but if we may trust the reports contained in the Year Books, even this was rare. Still there appears to have been very little tendency to innovation; and there was doubtless a tradition of the courts to which every judge knew that he must conform at the peril of his reputation. Some record of the proceedings of the Superior courts of justice was always kept, and we have a series of such records commencing as early as the 6 Ric. II (1394). These early records might, and
probably did, afford some guide in future cases, though they were not drawn up with that object. Moreover, at least as early as the reign of Edward I the practice was begun of drawing up in addition to these records, reports of cases heard and determined, the main and apparently the sole object of which was to furnish judges with precedents to guide them in their future decisions. In these Year Books there is very little argument, but only an ascertainment by oral discussion of the points at issue with the decision of the court. The reporter however frequently criticises the decision, and sometimes indicates in a note the general proposition of law which he supposes the decision to support. Reference is also sometimes made by the reporter to other cases involving the same point. The later Year Books give the arguments somewhat more fully, but still we do not find previous cases frequently cited. From this we might be disposed to infer that the practice of citing cases in support of an argument or a judgment was still very rare even in the reign of Henry the Eighth, when the last Year Book was published. Yet this can hardly be so, for the reports of Plowden in the reign of Edward VI, which are much fuller than the latest Year Books, show that cases were at that time freely cited, and it is not likely that the practice came suddenly into existence. Moreover, we can scarcely account for the existence of the Year Books at all unless we suppose that the lawyers studied them and made some use of them. The importance attached to the Year Books is further shown by the numerous reprints of them which were issued as soon as the art of printing was discovered, and also by the popularity of the abridgments made of them by Fitzherbert and Brooke. Probably, therefore, the influence of precedent upon the decisions of the judges is not to be measured by the number of cases quoted in the Year Books.
91. It is, however, always as indicating the custom of England, and not as authority, that the decisions of earlier judges were cited. during all this period and even afterwards. In the patent of James I for the appointment of official reporters it is indeed recited that the common law of England is principally declared by the grave resolutions and arrests of the reverend and learned judges upon the cases that come before them from time to time, and that the doubts and questions likewise which arise upon the exposition of statute laws are by the same means cleared and ruled. Nevertheless we find Blackstone still saying that the first ground and chief
corner-stone of the laws of England is general and immemorial custom. But long before Blackstone's time, and in some measure perhaps owing to the patent of James I, a very important change had taken place in the view held by judges as to the force of prior decisions. These decisions were at first evidence only of what the practice had been, guiding, but not compelling, those who consulted them to a conclusion. But when Blackstone wrote, each single decision standing by itself had already become an authority which no succeeding judge was at liberty to disregard. This important change was very gradual, and the practice was very likely not altogether uniform. As the judges became conscious of it they became much more careful of their expression, and gave much more elaborate explanation of their reasons. They also betrayed greater diffidence in dealing with new cases to which no rule was applicable, cases of first impression as they were called; and they introduced the curious practice of occasionally appending to a decision an expression of desire that it was not to be drawn into a precedent.
92. Thus it comes to pass that English case law does for us what the Roman law does for the rest of Western Europe. And this difference between our common law and the common law of continental Europe has produced a marked difference between our own and foreign legal systems. Where the principles of the Roman law are adopted the advance must always be made on certain lines. English or American judge can go wherever his good sense leads him. The result has been, that whilst the law of continental Europe is formally correct it is not always easily adapted to the changing wants of those amongst whom it is administered. On the other hand, the English law, whilst it is cumbrous, ill-arranged, and barren of principles, whilst it is obscure and not unfrequently in conflict with itself, is yet a system under which justice can be done. Anyhow it stands alone in the history of the world. The records. of decisions have no doubt at all times and in all countries served as evidence of custom, just as the Year Books formerly served, and the court rolls of manors still serve, amongst ourselves. And even without the influence of custom judges are never likely to disregard or to remain uninfluenced by the decisions of their predecessors. But nowhere else than in England and in countries which have derived their legal systems from England have the decisions of judges been systematically treated as authoritative.
(e) Precedents and Case Law.
HOLLAND, JURISPRUDENCE, chap. V.
In the weight which they attach to the decision of a court legal systems differ very widely. While in England and in the United States a reported case may be cited with almost as much confidence as an Act of Parliament, on the Continent a judgment, though useful as showing the view of the law held by a qualified body of men, seems powerless to constrain another court to take the same view in a similar case.
The continental view is an inheritance from the law of Rome; for although Cicero enumerates 'res judicatae' among the sources of law, and the Emperor Severus gave binding force to the ‘auctoritas rerum perpetuo similiter indicatarum,' the ordinary principle was finally established by a Constitution of Justin. The Codes of Prussia and Austria expressly provide that judgments shall not have the force of law, and although the Codes of France, Italy, and Belgium are silent on the point, the rule in all these countries is substantially the same, viz. that previous decisions are instructive but not authoritative; subject to certain special provisions of a strictly limited scope.
In England cases have been cited in court at least as early as the time of Henry I. They are however stated by Lord Hale to be 'less than law,' though 'greater evidence thereof than the opinion of any private persons, as such, whatsoever'; and his contemporary Arthur Duck, remarks that the Common Law judges, in case of difficulty 'non recurrunt ad ius civile Romanorum, ut apud alias gentes Europeas, sed suo arbitrio et conscientiae relinquuntur.' But in Blackstone's time the view was established that 'the duty of the judge is to abide by former precedents,' and it has long been well understood that our courts are arranged in this respect in a regular hierarchy, those of each grade being bound by the decisions of those of the same or higher grade, while the House of Lords is bound by its decisions.
There have been of late some symptoms of an approximation between the two theories. While on the continent judicial decisions are reported with more care, and listened to with more respect than formerly, indications are not wanting that in England and the United States they are beginning to be somewhat more freely criticised than has hitherto been usual.
From the PRIOR OF LEWES V. THE BISHOP OF ELY (1304). Year Book, 32 Edw. I., Horwood ed. p. 39.
Herle (of counsel for plaintiff, arguendo): But consider whether he shall be admitted to aver these three causes: for the judgment to be by you now given will hereafter be an authority in every quare non admisit in England; therefore consider if he shall be received to aver these three causes.
ANONYMOUS CASE, COMMON PLEAS (1341). Y. B. Pasch. 15 Edw. III., No. 56.
Dower. Thorpe (counsel for defendant, pleading): She was not when her husband died of such age as she could merit dower. Hillary (J.): State with certainty of what age she was. Thorpe: Not nine years old. Gayneford (counsel for plaintiff): She was nine years old and more. Ready, etc. Thorpe: Show her age to have been such that she would have been dowable thereat, viz. ten years at least. Hillary, J.: In the case of John Benstede the widow was endowed at the age of nine years and a half. (Pike's translation.)
ANONYMOUS CASE, COMMON PLEAS (1462). Y. B. 2 E. 4, 27. In debt on a bond against A. R. late of F. the defendant says that at the time the writ etc. he was conversant at M. without this that he ever lived at F. in the manner etc. Littleton (counsel for defendant): To this you shall not be received against the bond. Billing (counsel for plaintiff): That is not an estoppel, for this was adjudged, M. 34 H. 6 fol. 19 [i. e., Michaelmas Term in the 34th year of Henry VI.], here in the case of one J. Weeks, late of Bristow. Needham and Danvers alone were on the Bench. Needham (J.) said that this is no estoppel, for it is with the bond, for it may be that F is a place called F. in a town, and no farm or hamlet or place known outside of the town or hamlet, or that his name is R. M. of F. which F. is his own house in the town Danvers (J.) agreed . . . Littleton: I understand not, Sir, this was decided before you here in your time. M. 37 H. 6. fo. 5. Needham (J.): No Sir, I believe not unless the bond makes mention of a town by express words, that is to say of the town of F.
BOLE V. HORTON, COMMON PLEAS (1670). (Vaughan, 360, 382. Extract from the opinion of Vaughan, C. J.
An extra-judicial opinion, given in or out of a court, is no more. than the Prolatum or saying of him who gives it, nor can be taken