Page:Harvard Law Review Volume 9.djvu/67

39 JUDICIAL PRECEDENTS. 39 It seems impossible to give the force of judicial precedents in the common law more exactly ; they have great weight, but not irresistible weight. Their decisions can be (and I mean can be according to the theory of the common law) overruled or not followed. Any attempt at more precise determination would result simply in a theory by the particular writer as to what would be desirable rules, and not of what are in fact the principles which govern.^ The circumstance that in the English law precedents are to be generally but not always followed, and that no rules have been, or apparently can be, laid down to determine the matter precisely, shows how largely the English law is the creation of judges, for they not only make the precedents, but say when the precedents shall be followed or departed from. The House of Lords, however, according to modern theory, is absolutely bound to follow its own precedents.^ This notion is not an ancient one. In 1760 the House in Pelham v. Gregory, 3 Bro. P. C. (Toml. ed.) 204, overruled its decision made in 1736, in Brett V, Sawbridge, Id. 141, on a question of remoteness. But in 1827, in Fletcher v. Sondes, i Bligh, N. s. 144, 249, Lord Eton declared that the House was bound by Bishop of London v. Ffytche, 2 Bro. P. C. (Toml. ed.) 211, which was the last case where peers, not learned in the law, voted, and in which the courts of Common Pleas and King's Bench were overruled by a vote of nineteen to eighteen. But in 1 82 1, in the case of Perry v. Whitehead, 6 Ves. 544, 548, Lord Eldon said that '* a rule of law laid down by the House of Lords must remain till altered by the House of Lords." As late as 1852 Lord St. Leonards expressed an opinion that the House was not bound by any rule of law which they might lay jdown, Bright V, Hutton, 3 H. L. C. 341 ; and in i860, in A. G. v. Dean and Canons of Winsor, 8 H. L. C. 369, 459, Lord Kingsdown re- served his opinion upon the question ; but during this time Lord Campbell was reiterating that the House could not change the rules of law it had laid down. 3 H. L. C. 391 ; 8 H. L. C. 391, 392 ; 1 The best statement of the circumstances which add to or diminish the weight of precedents is to be found in Ram on Judgments. 2 No such doctrine governs the Judicial Committee of the Privy Council, which Is for colonial and certain other matters an ultimate court of appeal. Thus the decision that a colonial legislature had a common-law power to punish contempt, which was made in Beaumont v. Barrett, i Moore, P. C. 59 (1836), was overruled by Keilley z/. Carbon, 4 Moore, P. C. 63 (1842), the same judge, Baron Parke, delivering the opinion in both cases.