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court made, must always (with the same exception) be open • to the inquiry whether the declaration is a true or a false declaration. The same distinction must be made between a constitutionally valid statute and a precedent. In short, precedents are not legally authoritative. They are authoritative only in the same sense in which expert opinions in other branches of science are so.
While all precedents must be open to an inquiry as to whether their express and implied declarations of what the law is are correct, they differ widely in other respects. The more closely you study some of them the more clearly does their truth appear, e. g., Marbury v. Madison. The more closely you study others of them the more clearly does their error appear; e. g., People v. Williams. The more closely you study still others of them the more clearly it appears that the law itself is doubtful and so uncertain that it may be decided in any one of several ways without doing violence to any controlling principle or substantial injustice to any party, and that it stands in need of a statutory provision to resolve the doubts, and the more clearly does it appear precisely how a statutory provision adequate for the purpose ought to be framed; e. g., the numerous “beyond the seas” cases cited and discussed in Davie v. Briggs.3
In adjudicating a lawsuit every court is bound by the law, or, as may preferably be said, by the laws according to their constitutional gradation; and it is none the less bound thereby because it or some other court in a prior case between different parties has made an erroneous statement of what the law is.
The judicial process of hearing and determining a lawsuit requires more or less time, according to the nature of the case. The theory of the proposal is that if at the beginning of the process the judge is as open-minded in respect of matters of law as judges always have been in respect of matters of fact, and if he remains so during the process
11 Cranch. 137. 2 189 N. Y. 131.
397 U. S. 628.
while getting all the light he can from the precedents and institutions of the past and from the facts and the advanced knowledge of the present day, his final determinative act will most likely be just to the persons involved in that particular lawsuit and, whether just to them or not, will do no wrong to anybody else.
A fine example of the attitude of mind towards precedents which the proposal, if enacted, will tend to give to the judges of all our highest and lowest courts may be found in Davoue v. Fanning,* and particularly in the way in which in that case Chancellor Kent, while sitting in a court of original jurisdiction, treated the opinion of the court of final appellate jurisdiction in Munro v. Allaire.5
An example (which, but for one deplorable circumstance, discussed in $$ 25-31 post, would be perfect) of the kind of reasoning and the sort of considerations which, if the proposal be enacted, will consign many a mind-fettering precedent to the dust-bin or to a shelf for leisurely dissection by legal historians and psychologists, may be found in People v. Charles Schweinler Press.
The proposal made in the letter to Mr. Rodenbeck might well have included still another section for the short practice bill conforming substantially to the proposal for the Federal Cotton Futures bill ($9 post) and the proposal for the amendment of the Judicial Code of the United States (§ 34 post).
§ 3. The conception of the legal effect of precedents, at which the proposal is aimed, may be made definite at 'all points and very clear by a few examples.
Mr. Caffey's letter (f 10 post) shows that the Federal Reserve Act, the Clayton Anti-Trust Act, and several other modern Congressional and State statutes contain a section reading thus:
If any clause, sentence, paragraph, or part of this act shall, for any reason be adjudged by any court of competent jurisdiction to be invalid,
4 2 Johns. Ch. 252. 52 Caines Cas. 183.
such judgment shall not affect, impair, or invalidate the remainder there. of, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judg. ment shall have been rendered.
In People v. Charles Schweinler Press,' two judges of the Appellate Division of the New York Supreme Court delivered an opinion which in full reads thus:
“However much į might concur with the views of the presiding justice, I think this intermediate court is bound to follow the judgment of the court of last resort. If the Williams case is no longer an authority, it is for the Court of Appeals to say so. We have no power to review their decision. I, therefore, feel myself constrained to dissent upon that case.”
In Kuhn v. Fairmont Coal Co.,8 Mr. Justice Holmes, of the Supreme Court of the United States, speaking for himself and also for Mr. Justice McKenna and for Mr. Justice White said:
“But I suppose it will be admitted on the other side that even the independent jurisdiction of the Circuit Courts of the United States is a jurisdiction only to declare the law, at least in a case like the present, and only to declare the law of the State. It is not an authority to make it. ... In those cases the court followed Chief Justice Taney in Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 416, in recognizing the fact that decisions of state courts of last resort make law for the State. ... It is said that we must exercise our independent judgment—but as to what? Surely as to the law of the States. Whence does that law issue? Certainly not from us. But it does issue and has been recognized by this court as issuing from the state courts as well as from the state legislatures. When we know what the source of the law has said that it shall be, our authority is at an end. The law of a State does not become something outside of the state court and independent of it by being called the common law. Whatever it is called it is the law as declared by the state judges and nothing else.”
In Reed v. McCordo the New York Court of Appeals said: “The constitutional convention clearly entertained the opinion that the continued existence of the Court of Appeals was justified only by the necessity that some tribunal should exist with supreme power to authori. tatively declare and settle the law uniformly throughout the state. That
7 163 App. Div. 620.
9 160 N. Y. 330, 335.
court was continued, not that individual suitors might secure their rights, but that the law should be uniformly settled, to the end that the people might understand the principles which regulated their dealings and conduct and thus, if possible, avoid litigation. It was that necessity alone which induced the adoption of the provisions for a second appeal, and the continuance of a single court to finally determine such principles." (See also Section 6 of Cardozo's book on The Jurisdiction of the Court of Appeals of the State of New York.)
Near the close of a long and useful career as a teacher of law in the Harvard Law School the late Professor John Chipman Gray put forth a little book on The Nature and Sources of the Law, the teaching of which may fairly be summed up in either one of two short sentences, namely: (a) The Law is whatever the courts administer as such, or (b) Quod placet principi lex est. The book rests upon an assumption or premise of absolutism which for the most part is unexpressed or tacit, but which in one place shines out brightly. In Section 229 of the book Professor Gray says:
“Rules of conduct laid down and applied by the courts of a country are coterminous with the Law of that country, and as the first change, so does the latter along with them. Bishop Hoadly has said: “Whoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the Law-Giver to all intents and purposes, and not the person who first wrote or spoke them;' a fortiori, whoever hath an absolute authority not only to interpret the Law, but to say what the Law is, is truly the Law-Giver"
To the minds of the writers of all these opinions constitutional principles were in a state of total eclipse. None of them makes any attempt to fortify his all-important conclusions by reasoning from constitutional premises. None of them shows the slightest consciousness that any constitutional principle is involved. All of them speak as if their premise of absolutism were a truth in rerum natura. This fact, it is submitted, raises a strong presumption of error against them.
Within the United States of America the courts have an authority to interpret all written and unwritten laws and
to say what the law is. Is the authority absolute? Nobody will say so. How, then, is the authority limited? The opinions just quoted admit that the authority can be exercised only in the process of adjudicating a lawsuit and must be confined to what is necessary for that purpose, but assert that an interpretation of the law and a declaration of what the law is, made within those limits by the courts generally or by the single court of last resort, bind not merely the parties to the lawsuit but everybody else, so that in this respect the authority is unlimited or absolute. The proposal for the New York short practice bill denies that assertion.
How is the issue, thus sharply defined, to be determined? Plainly not by the maxim of the English common law known as the stare decisis rule. Plainly not by any judicial decision, no matter by what illustrious judge rendered, nor by any line of judicial precedents, however long extended. Our courts do not derive their authority from the English common law nor from precedents of their own making. All the authority they have comes from our written constitutions. By those constitutions, and by them alone, can this grave issue be determined.
In other words, the legal effect of precedents in this country and the constitutional authority of courts are not two independent and distinct questions, but merely two ways of stating one and the same question. Precedents cannot possibly have the legal effect imputed to them by these quotations unless the courts, under the written powers of attorney which they have received from the people, have the authority which is imputed to courts generally by the acts of Congress and by Professor Gray's book, and which is imputed to appellate courts of last resort by the opinions here quoted from People v. Charles Schweinler Press, Kuhn v. Fairmont Coal Co. and Reed v. McCord.
§ 4. Reasons for the proposal based on the constitutional principle that no one ought to be deprived of life, liberty or property without due process of law, of which, in