would be a greater evil than particular injustice. It has been well observed by Sir Francis Palgrave,*-that "the principle of adopting precedent as the guide of judicial decisions, gives stability and vigour to the administration of justice. Speculative wisdom never can devise a code capable of providing for the infinite variety of cases arising out of the transactions of even the most simple state of society. A system of jurisprudence founded on precedents, admits the engrafting of other precedents as they arise and this will form the nearest approach to a perfect code; because, although no two cases are ever exactly similar, still no one new case ever happens which has not had a fore-runner, in some earlier case, so nearly analogous to it, as to afford a rational rule to the tribunal." The rule laid down by Blackstone is, that "precedents should be followed," unless flatly absurd and unjust;† which contains, perhaps, as safe a limitation as can be well devised. Still, however, it leaves the matter open for the exercise of discretion, on the part of judges, in inquiring into, and determining the degree of error imputable to a previous decision. Can it, however, practically be otherwise? Is the Legislature, in defiance of the ancient rule of dignus vindice nodus, to be called into exercise, in order to correct every faulty decision? If not, some one must do so; and who so fit as the judges-who else, in fact, is • Original Authority of the King's Council, pp. 9, 10. + Vol. i. p. 70. "Not that the particular reason of every rule in the law," says Blackstone," can, at this distance of time, be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason: and then the law will presume it to be well-founded." Such was also the doctrine of the Civil Law: "Non omnium quæ à majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationis eorum, quæ constituuntur, inquiri non opportet: alioquin multa ex his, quæ certa sunt, subvertuntur." Ff. 1. 3. 21. there to undertake the duty-of preventing injustice by adhering to faulty decisions, on the one hand, and, upon the other, avoiding the incalculable evils of uncertainty in the law? The judges of the present day, if bolder than some of their predecessors, have nevertheless repeatedly recognised the necessity of adhering to former decisions, except in very clear cases of error. "In our system of judicature," says Mr. Baron Parke, in Garland v. Carlisle, 2 Crompt. and Mee. 64, "we are bound by precedent, and the authority of previous cases, unless they are plainly and manifestly founded upon erroneous principles; and that for the wise purpose of securing a reasonable degree of certainty in our judicial proceedings." "The decisions of our predecessors," said the late Lord Tenterden, in an important case, (Selby v. Bardons, 3 Barn. & Adol. 17,) "the judges of former times, ought to be followed and adopted, unless we can see very clearly that they are erroneous; for otherwise there will be no certainty in the law." And again, the same eminent judge thus expressed himself in another case (Williams v. Germaine, 7 Barn. & Cress. 476) :—“ It is of great importance, in almost every case, that a rule once laid down, and firmly established, and continued to be acted upon for many years, should not be changed, unless it appears clearly to have been founded upon wrong principles." Thus also said another able judge: (Mr. Justice Ashurst, in Goodtitle v. Otway, 7 T. R. 419.) "One would always wish that the law were certain upon all * Chief Justice Tindal, in the case of Mirehouse v. Rennell (above adverted to), thus expresses his characteristically cautious opinion: "I think it a safer course upon this occasion, as I find has been the opinion of other judges from the earliest periods of the law, to adhere to any rule which can be safely inferred from the cases, rather than to substitute another, although it may appear, upon general principles, more reasonable and more just.” subjects and perhaps it is of less importance how the law is determined, than that it should be determined and certain." Thus also Lord Chancellor Parker (in Butler v. Duncomb, 1 P. W. 452,) "When things are settled and rendered certain, it will not be so material how, as long as they are so, and that all people know how to act." So Lord Chancellor Hardwicke: "Certainty is the mother of repose; and therefore the law aims at certainty."* These observations apply with irresistible force to the rules of real property. Uncertainty there may affect every man, and to such a degree that, as Mr. Justice Ashurst observed in Goodtitle v. Otway, "the ablest conveyancers may not be able to direct him." Who can tell how many thousands of estates stand, or depend, upon the rule which it is sought to impugn and abrogate? "Stare decisis," said Chief Justice Wilmot, "is a first principle in the administration of justice-because these cases have furnished the light by which conveyancers have long been directed in settling and transferring property from one man to another. Upon the faith of an established rule, and the acquiescence of judges, and of the whole nation in it, property to the amount of millions may depend. The judges now, as their predecessors have always done, bow down to the rule pro salute populi, which is the supreme law of every community."† Lord Mansfield and Lord Kenyon may be cited as representatives of the two extremes of opinion, as to the duty of judges adhering rigidly to established rules of law, or moulding them to meet the altering exigencies of the times. Thus spoke Lord Mansfield, 1 Dickins' Rep. 245. ↑ Wilmot's Notes of Opinions, &c., p. 312. Quicquid agant homines is the business of courts: and as the usages of society alter, the law must adapt itself to the various situations of mankind."* Again, "This is the general rule. But then it has been said, that, as the times alter, new customs and new manners arise: these occasion exceptions; and justice and convenience require different applications of these exceptions, within the principle of the general rule."t Thus, however, spoke Lord Kenyon, the successor of Lord Mansfield, with reference to the above expressions of opinion: "I confess I do not think that the Courts ought to change the law, so as to adapt it to the fashion of the times; if any alteration in the law be necessary, recourse must be had to the legislature for it." Again, "We must not, by any whimsical conceits, supposed to be adapted to the altering fashions of the times, overturn the established law of the land. It descended to us as a sacred charge, and it is our duty to preserve it."§ Again, "It is my wish and my comfort to stand super antiquas vias. I cannot legislate; but by my industry I can discover what my predecessors have done, and I will servilely [!] tread in their steps." || Innumerable traces will be found by the attentive student, in perusing the decisions of our courts, of the conflict between these opposite principles. It cannot be denied, however, that the doctrine of Lord Mansfield appears to be, upon the whole, more convenient and satisfactory * Barwell v. Brooks, 3 Douglas (Frere & Rosc. Ed.), 373. + Corbett v. Poelnitz, 1 T. R. 8. § Clayton v. Adams, 6 T. R. 605. Ellah v. Leigh, 5 T. R. 682. than that of Lord Kenyon; but it behoves our judges to act upon it with much of that spirit of caution which led Lord Kenyon-if we may presume to say itinto an opposite extreme. That sturdy common lawyer, in enunciating the doctrines above referred to, took his stand upon the solid ground of constitutional principle— one of the most important, indeed, that ever has been assigned as a bulwark of our liberties—namely, a jealousy of judicial discretion. "The discretion of a judge," said Lord Camden, "is the law of tyrants." This is the true cause of our adherence to fixed rules, and of many consequent defects in our law. "We have just reason," observed Mr. Hallam,* "to boast of the leading causes of those defects . . . an adherence to fixed rules, and a jealousy of judicial discretion, which have in no country, I believe, been carried to such a length. Hence," proceeds that acute and severe critic of our legal system, "precedents of adjudged cases, becoming authorities for the future, have been constantly noted, and form, indeed, almost the sole ground of argument in questions of mere law. But these authorities being frequently unreasonable and inconsistent, partly from the infirmity of all human reason, and partly from the imperfect manner in which a number of unauthorised and incorrect reporters + Middle Ages, vol. ii. p. 469. The late experienced and learned Mr. Chitty thus expressed himself upon the subject of the existing multiplicity and frequent imperfection of legal REPORTS: "With respect to legal Reports, it has been the misfortune of the profession, in some instances, to have them undertaken by inexperienced persons, who can scarcely understand the question before the Court, and still less appreciate the import of the arguments or judgment; and whose haste and misapprehension too often occasion the mis-statement even of facts. A person should |