Page:Harvard Law Review Volume 9.djvu/64

36 36 - HARVARD LAW REVIEW. is law in England and in the United States that, apart from its intrinsic merits, the decision of a court has great weight as a precedent with that court and all co-ordinate courts in the same jurisdiction, and is absolutely binding on all inferior courts. The reason of this distinction is one of the many unsolved problems of comparative jurisprudence. And in the common law itself this regard for judicial precedents is a characteristic of its later, and not of its earlier stages. Glanville, who was probably the real author of the ** Tractatiis de Legibus," which goes by his name, died in 1190. There seems to be but one reference in his book to a decision of a court. Book VII. c. I. Bracton, whose Treatise, *' De Legibus et Consuetudhiibus Anglice,'* was written in the middle of the thirteenth century, forms a singular exception to the general rule. He abounds in references to cases. But Mr. Maitland, in his remarkable book, has shown that, with trifling exceptions, the cases cited by Bracton were all decided at courts in which Martin PateshuU and William Raleigh sat as judges. " His is a treatise on English law as administered by PateshuU and Raleigh." ^ Bracton was exceptional. Fleta, written towards the end of the thirteenth century, was largely drawn from Bracton, but in only one chapter does he refer to particular decisions. In this chapter (Lib. 2, c. 3) he gives three cases as to the jurisdiction of the Steward of the King's Court when the King was out of England, two of them being in Gascony and one in Paris, the last being a decision of the French King's Council that the King of England had jurisdiction over one Ingelramus caught in the English King's hotel with stolen goods. Ingelramus was tried before the Steward and was " suspensus in patibulo Saiicti Germani de Pratis^' Britton, who also wrote about the close of the thirteenth cen- tury, took in like manner largely from Bracton, but I have found no reference whatever in his book to any decision of the courts. So in the first Year Book yet printed, and which is later than Bracton and nearly contemporaneous with Fleta and Britton, 20&21 Edw. I. (1292-1293), the references to decisions are few and brief, e. g., " Witness the case of William de la Bathe " (p. 2 1 1 ) : or a tally. In the time of Thomas de Weylond a tally was not allowed; now it is" (p. 305). See also pp. 195, 415, 439. 1 Maitland, Bracton's Note Book, 40, 45, 48 et seqq., 60.
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