THE FORCE OF JUDICIAL PRECEDENTS


The antipathy to legal codification, which, until recent years,
was a characteristic both of the English and American bar, and
still prevails, though with diminishing force, has given, and
necessarily given, great force to judicial precedents. It is
mainly through them that with us unwritten law passes into
written law. Precedent is a fruit of reason ripened by time.
Time, it has been said, is the daughter of Antiquity and takes
place after Reason, which is the daughter of Eternity. Precedent
rests on both. A legal code framed in any American State is
little more than the orderly statement of what American courts
have decided the law to be on certain points.

When reason is set to work upon the solution of a problem growing
out of the affairs of daily life, it often happens that two minds
will pursue different paths and perhaps come to different
results. Not infrequently neither result can fairly be
pronounced untenable. An English judge has said that nine-tenths
of the cases which had ever gone to judgment in the highest
courts of England might have been decided the other way without
any violence to the principles of the common law.

Every lawsuit looks to two results: to end a controversy, and to
end it justly; and in the administration of human government the
first is almost as important as the last.[Footnote: Hoyt
_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
the essence of justice; but among men and as administered by
their governments it can only be such certainty as may be