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cases I find the question to be completely closed in Westminister Hall; and that we therefore are bound to hold that though a bankrupt has altogether ceased to be a trader; yet that his warehouse continues open for the purpose of receiving goods; and that the assigns have a right to take possession of every thing that comes into their hands with out paying a single farthing even though the consigns of the goods are not entitled to come in under the commission." And Heath, J." It is much to be lamented that the goods consigned to a bankrupt which arrive after the act of bankruptcy as in this case, should even be considered as part of the bankrupt's effects. The hardships to which this rule of law had given rise, was the occasion of introducing the doctrine of stoppage in transitu."
Brooks, J. "I exceedingly regret that such a rule of law should have been adopted; for it appears to me to be productive of very great hardships. But the cases are too decisive upon the subject for the court now to adopt a contrary doctrine." Chambre, J. "I am entirely of the same opi
What would have hindered them in a conference among themselves, say the twelve judges, to come to an understanding on the subject, and determine that as to all cases subsequently arising; a contrary doctrine should prevail? This is not a case where it stands indifferent how the rule shall be; and the desideratum only can be, that it be settled. A rent in the wall cannot more mar the beauty of an edifice, than what is unreasonable, the consistency of a moral science. For the law is not altogether a system of arbitrary rules, like those of a game at cards, or of chess. It depends upon the subject of the rules whether they may barbitrarily fixed; or exist antecedently in the nature of relations. All rules of practice, or which respect the modus et forma of pursuing, or defending rights, are of an arbitrary nature, as, "if goods be bought to be paid for by a bill at two months, and after the goods are delivered the bill is refused to be given, shall the vender sue for the bills, or the price of the goods?" In Mussen v. Price, 4 East, 147, the chief J. of the king's bench; and in Dutton v. Solomonson,
3 Bos. and P. 584, the chief J. of the common pleas thought that he might sue for either; but the law being once settled no material inconvenience could result.
In Andrew v. Hutton, the chief J. of the common pleas, speaking of the case of Jeffreson v. Morton, says, "I cannot help thinking, with deference to the very learned judges by whom the case was decided, that if the matter had been more fully discussed it would have been differently determined. They would seem to have taken up the case in a wrong point of view, and I feel myself compelled to deny the authority of that case." 3 Bos. and Pul. 652. Nor is it only a rule of practice, but a principle of law that decisions will change. In a note to 3 Bos. and Pul. 654, we have a note of the words of lord Mansfield in a case before the court. " On the introduction of the statute of uses, there arose great dread of letting in perpetuities, by means of the extensive operation of that statute, and in the time of Eliz. and James, many cases were decided with a view to prevent that effect; with this view it was allowed to bar contingent remainders; before the person who was to take came into esse; others were held to be too remote in their creation. The cases proceeded in that view too far, and estates were too much loosened, and it became necessary to restrain them again; and in the time of the troubles, eminent lawyers, who were then chamber counsel, devised methods, which on their return to Westminster Hall, they put in practice; such as interposing trustees to preserve contingent remainders. It is not of long date that the rules now in use have been established. I remember the introduction of the rule which prescribes the time in which executory devises must take effect, to be life or lives in being, and 21 years afterwards."
A principle oftentimes comes to be varied from what it originally was, by application of it, and acquires an extent beyond its first dimensions. As said by lord Elden, 2 Bos. and Pul. 24, "With respect to the cases which have been cited, it is to be observed, that when a general principle for the construction of an instrument is once laid down, the court will not be restrained from making their own applica
tion of that principle, because there are cases in which it have been applied in a different manner. The principle being once acknowledged, the only difficulty consists in making the most accurate application of it." Why is a decision cited but because the case decided is the same with that to be decided? But unless the case is precisely the same, the analogy is imperfect, and the application erroneous. Hence the #exercise of judgment is as necessary as the recollection of precedent.
"The rule of stare decisis, is as justly applicable to private parties, as it is to general principles, where the decision can be reasonably ascertained and supported," 2 Bos. and P. 191, and 298. The case is clear says justice Chambre, both on reason and authorities. This marks the distinction and implies a difference, and that authority is not always reason. And in 403, the same judge in another case, says, "I stand single in my opinion here, and opposed by a determination of the court of exchequer ; and that strengthened by a determination of lord Loughborough, at nisi prius, confirmed in this court. I am sensible of the weight of these authorities, but I feel myself under the necessity of enquiring into the foundation of those decisions. I feel the weight of authority against the opinion I am delivering, and I am fully aware of the propriety of adhering to former decisions, and the mischief of lightly departing from them; but, as certainty is the chief reason for submitting to authority, such determinations as are not perfectly satisfactory in respect of
arguments on which they were founded, cannot contribute to certainty, which will be better attained by going back to reason than by following the determinations."
In 2 H. Blackstone, 450, Buller J. refers to it as a thing frequently said in courts, "the nonsense of one man cannot be a guide for another," which would seem to imply a right in all men that judge, to examine what is said, and determine whether nonsense or not, before they follow it. I take it to be the privilege, and what is more, the duty of every judge to examine for himself; and to steer between the charybdis of unreasonable decision on the one hand, and the
scylla of uncertainty on the other, as in his discretion shall seem practicable, in the administration of justice. These observations can have no relation to matters not founded on the construction of a statute; or on moral reason, but on abstract practice, and arbitrary rule, for which there is no reason but what is artificial, and the sic jubeo of de cisions, where it is the regulation; or the adjudication of the courts that makes the rule, and is not the mere evidence of it, and supposes the prior existence of principle Nor do I mean to insinuate that there are those who ex clude wholly the canvassing the reason of a precedent; but that I would allow myself the questioning the reason of 1 precedent, as well as the application. Where one is shock. ed by a decision, there is some presumption against it, and if traced it may be found to be an error, and the time when, and the place ascertained where it bred.
With respect to our own courts in this country to which I bring my observations it would seem to me that we have been in the habit of paying more deference to English de cisions than the most technical of the English judges them selves. They do sometimes by overhauling and distinguish ing, make out to get clear of a case that seems to sanction what is unreasonable; but I do not know where that has been
done in our courts. Be that as it may, I am not prepared
to subscribe to our own decisions in all cases as conclusive authority. When we review the judicial history of this state, we shall find the constitution of the courts to have been such that for a length of time a decision could be con sidered as little more than the opinion of a single mind. Before the revolution, until the time of chief J. Chew, there was no great legal character on the bench of the supreme court; and after the revolution for a long time there was but one that had been bred a lawyer. When abler associates came upon the bench of this court, consisting still but of four judges, and two of them holding the nisi prius courts, the opinions given at nisi prius could be given but by two, and what use in bringing the matter before another two in bank, who being but of equal number could not be supposed
to listen readily to reverse what had been sanctioned. Besides the judges sitting in bank at an extremity of the state, rendered it impracticable in most cases, for suitors to sustain the expense of an appeal; and for this and other reasons, we all know that the court of errors and appeals sitting at the same place, was to the midland and more especially to the western country but a name. I do not think, therefore, that so much weight ought to be attached to decisions in this state; or that the not appealing should be considered as an acquiescence in the reason of them. On a principle of tenure of real property where an original, and not a derivative title comes in question, it must be with great repugnance I can submit to a decision to which my judgment was opposed when at the bar, and which I cannot consider as having received the investigation of such a number of minds legally informed, so as to give s tisfaction. I must acknowledge that I do not consider the principles of construction so far settled as to preclude examination. This I say as not undervaluing the judgment of others, but as accounting for that freedom of thinking which I may indulge in some cases, and which is not founded as may be supposed in the vain ambition of being singular, or of being thought pre-eminent; but in the love of liberty, and repugnance to submission to what does not appear to me to be founded on reason, general convenience, or justice to individuals. I will admit that much has been done towards
building a system of jurisprudence in the state, but I am unwilling to apply the maxim of stare decisis to all that has
Under the head of Judicial opinion or determination, 15 Vin. 1. it is said the decisions of courts are the conservatives and evidences of laws. Or they are such as by way of deduction and dilation upon laws, are formed or deduced; or they are such as seem to have no other guide but the common reason of the thing, unless the same point has been formerly decided, as in the exposition of the intention of clauses in deeds, wills, covenants, &c. where the very sense of the word, and their positions and relations give a ra