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for his opinion, unless everything spoken at pleasure must pass as the speaker's opinion. An opinion given in Court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary, Opinion had been broached, is no Judicial opinion, nor more than a gratis dictum. But an opinion, though erroneous, concluding to the Judgment, is a Judicial Opinion, because delivered under the sanction of the Judge's Oath, upon deliberation, which assures it is or was when delivered the Opinion of the deliverer. Yet, if a court gives judgment judicially, another court is not bound to give like judgment, unless it think that judgment first given was according to law. For any court may err, else errors in judgment would not be admitted nor a reversal of them. Therefore if a Judge conceives a Judgment given in another court to be erroneous, he being sworn to judge according to Law, that is in his own conscience, ought not to give the like judgment, for that were to wrong every man having a like cause because another was wronged before, much less to follow extrajudicial Opinions unless he believes those Opinions are right.

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It is an established rule to abide by former precedents where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments; he being sworn to determine, not according to his private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.

MIREHOUSE V. RENNELL, House of Lords (1833). (1 Cl. & F.


Extract from the opinion of Parke, B.: Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; a

we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied,

because we think that the rules are not as convenient and reasonable as we ourselves could have decided. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of Law as a science.



The point I wish you to notice is that the authoritative force of judicial precedents is an established and up to the present time at least an essential part of the English and American systems of law. Let us trace more at large the scope and effect of this important doctrine. What is judicial precedent? Judicial precedent is not simply part of the law in a general sense, that it is natural to yield to the influence of example and to follow what has been practiced,but it is a part of our law in a sense and with effects which are distinctively and most strikingly peculiar. The doctrine as established is shortly this: that a decision by a court of competent jurisdiction of a point of law lying so squarely in the pathway of judicial judgment that the case could not be adjudged without decision, is not only binding upon the parties to the cause or judgment, but the point so decided becomes, until it is reversed or overruled, evidence. of what the law is in like cases, which the courts are bound to follow not only in cases precisely like the one which was first determined, but also in those which however different in their origin or special circumstances stand, or are considered to stand, upon the same principle. What is to be observed and remembered is that the adjudged case has an authoritative and not merely persuasive force. The doctrine is not limited in its scope and binding effect to cases which determine the true construction of a statute, but extends to the far larger class of cases which does not depend upon positive legislation, but must be determined by general reasoning. There is a difference of opinion among writers as to whether the precedent actually constitutes the law or is only authoritative evidence thereof. It is not proposed now to enter upon this discussion; it is enough to remark at this time that the precedent has in our legal system an authoritative effect. In Continental Europe a judicial decision has no authoritative force in any other case, whether in the same or any other court. But in England and in this country a point solemnly decided has the force and effect of law, binding the judges in all other cases that clearly fall within its

principle, and which the judges are therefore bound to follow and apply, unless, to use Blackstone's well-known and much criticized qualification, the precedent is "flatly absurd or unjust "

To this doctrine we owe a weight of obligation which can not easily be overstated. By reason of the consequent importance, they have been reported for several hundred years, so that at this time the volumes of reports in England and this country number about eight thousand. These embody the learning, wisdom, and experience of the judges (often men of great intellectual powers) who during this long period have made the law and the practical administration of justice the subjects of profound study. Indirectly the reports embody also the results of the researches, studies, experience and ability of the bar during the same period, since of these judges have had the advantage in the argument of the causes so decided. Indeed, the doctrine of judicial precedent implies that the point to the decision whereof such force is attributed should have been argued by opposing counsel.

The value of these reports to the lawyer and to the judge is, I repeat, absolutely incalculable. It is a mine of wealth possessed by none but English-speaking peoples. Here the lawyer finds his true riches. What the art collections in the Vatican, in the Tribune Room, the Pinacotheka, in the Dresden Gallery, and in the Louvre are to the artist, the judicial reports are to the English and American lawyer. I yield to no one in my estimate of the store of riches they contain. I have not yet mentioned one of the chief elements of their possible usefulness. They are capable of being made quite as valuable to the legislator as to the lawyer, since the uninterrupted light of the experience of many generations of men shines forth from them to mark out and illumine the legislator's pathway. He need scarcely take a single step in the dark.

i. Archaic modes of trial.

(f) The Jury.


The next step in the procedure was the appearance of the parties. before the judges at the trial term. The medial judgment, as we have seen must have directed a trial in one of the following modes, to wit, by compurgation, by witnesses, by charters, by record, by the ordeal, by the duel, or by the inquisition or recognition. Each

the judgment of the freemien (Witan). Const other

of these will now be considered in order, from the final point of view, the trial.

First, then, the compurgation. This in its essential features, consisted in bringing forward of a specified number of persons, by the party adjudged to give the proof to make oath in his favor: the number varying in ordinary cases from one to forty-eight, being dependent upon the rank of the parties, of the compurgators (one thegn, for example, being equal to six villeins), the value of the property, if property were involved, and the nature of the suit. These persons were to swear not to facts but to the credibility of the party for whom they appeared; though knowledge of the facts was probably deemed an important consideration in the making of the selection.

Trial by witnesses to the fact was very common both in the preNorman and in the Norman periods. Unlike compurgators who swore to their principal's credibility, witnesses to the fact swore to matters de visu et auditu. They differed, however, essentially from the inquisitors and recognitors of the time, and from modern witnesses. They gave their testimony in ordinary cases in accordance. with the narrow formula of the medial judgment; they were not examined as to facts; and they appeared (in this particular like modern witnesses) at the instance of the party for whom they testified. The judge might examine them as to their competency, but if this were established, if they were sworn to be legal men of the neighborhood, they were entitled to give an answer according to the prescribed formula. They were triers, not witnesses in the modern sense, and few of the questions which arise at the present day upon the testimony of witnesses, such as the admissibility of evidence, could arise under the procedure of the Norman (pre-Norman) period. Both civil and criminal cases were tried in this way. Civil cases may be found in the records almost without number.

Of trial by charters, little need be said. The effect and interpretation of documents were ordinarily matter for the judges; and trial by charters had in consequence more of the features of trials of the present day than any other form of litigation except that by inquisition and recognition. The event was not, as it was in trial by wager of law and by party-witness, largely and often wholly in the hands of the party who had delivered the last good pleading. Nor was it necessarily left to some external test, incapable in fact of discovering the truth. But as in the case of trial by inquisition,

the truth was if possible sought by a rational and satisfactory mode of inquiry, as by a comparison of the seal in question with other seals of the same party, admitted to be genuine.

The next mode of trial to be noticed was the ordeal, commonly called Judicium Dei, sometimes simply judicium. It was, like the duel, the final test, from which there was no appeal. It was a solemn invocation to Heaven to decide the matter in dispute and the result of the test was regarded by the credulous masses as effected by the direct interposition of the Almighty. But it was only when the party had no charters and could furnish neither witnesses nor compurgators, that he resorted to ordeal, except in cases provided for by special legislation, as by the Assises of Clarendon and Northampton. It was applicable to women equally with men; and it was the legal mode of exculpation of a man accused by a woman of the murder of her husband.

The ordeal was more extensively employed in the procedure of the pre-Norman period than in the later. It was the typical mode of trial among the English, contrasting English procedure with the procedure of their Norman conquerors. With them it was, until the Conquest, the only Judicium Dei so far as existing monuments bear witness. It was used frequently in civil as well as in criminal cases before and for a considerable time after the Conquest. Even Normans who affected to despise the peculiar institutions of the English, sometimes resorted to the ordeal. In the time of the Conqueror his Norman Bishop Remigius purged himself of a charge of treason by the ordeal of fire, sustained by one of the household of the accused.

The ordeal may possibly have continued to be legal mode of trial for civil causes in the twelfth century so far as anything directly to the contrary appears, but the encroachment of the duel, of compurgation and of the inquisition was constantly narrowing its application to such cases and probably long before the end of the century, probably indeed, before the middle of it, it had become practically obsolete in civil litigation. Its use appears at the same time to have become somewhat narrowed in criminal procedure. In the latter half of the twelfth century and probably earlier the duel had come to be recognized as a mode of trial in appeals of treason if not in appeals of crime generally; though in the case of presentments, where compurgation had probably been the common mode of trial,

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