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CHAPTER II

JUDICIAL PRECEDENTS ARE NOT INFALLIBLE The preceding chapter doubtless illustrates the generally recognized fact that judicial opinions are not infallible. The application of legal principles is not bound by an inflexible, unchangeable rule, announced by some court in the remote past. If this were true, then the test of a judge's capability would be his power to remember and find what past judges have said. This would dispense with any necessity for the exercise of his powers of reason, and would limit his labor to the search of digests and opinions. It would bind us to the proposition that the law had attained its perfection in the ages past; it would bind us to the theory that the first judicial opinion on any question conclusively determined, for all future time, that question, and that future judges, to know the law on such proposition, need only know what the first judge had said.

This theory would deny absolutely the possibility of advancement and progress in the application of legal principles, and would tie us irretrievably to the doctrine of human perfection in judicial ermine. Judicial opinions, at any given period, can be no more than the expression of the best understanding of the judges of that time of the rule of the equality of rights and obligations among men. To accord to judicial opinions the compliment of infallibility is to assert that the first judge who makes a decision upon any question has complete and per

fect knowledge of the matter, when, in fact, civilization, at any given time, does and should embrace the sum total of all that has been acquired and learned by experience in all the ages past, and this is as certainly true of the law, as it is of any other branch knowledge.

No good principle or thought of the past should be forgotten or unheeded merely because it may be hoary with age, but, to adhere unchangeably to precedent, is often times, to chain one's self to error as securely, as was mythical Prometheus chained to the rock; so that the cormorants of vice and greed would feed upon society as did the mythical vulture feed upon the liver of Prometheus. And a blind adherence to an unfounded precedent is allowing the saloon vulture to feed and thrive upon the misery, the woe, the vice, the crime and the blasted character of the twentieth-century man and womanhood to-day, sheltered and protected under the guise and garb of the law. The court that follows precedents, merely because they are precedents, searching for cases as the traveler looks for the guidepost, is as likely to perpetuate error as it is to correct it. It ignores the rule that a question, involving principle, is never settled until it is rightly decided, and proceeds upon the theory that the first decision determines the question, even though the decision may be wrong.

The multiplicity of precedents within itself ought to suggest the inadvisability of blind adherence to them, especially in view of the glaring want of uniformity.

There is about as much diversity in the opinions

of judges and courts as there is in the opinions of expert medical witnesses in a well-financed murder trial, involving the convenient defense of detachable insanity.

The following language of Judge Frank S. Roby, of the Indiana Appellate Court, is very vividly illustrative of this point: "The number of reported cases available is enormous and is being constantly multiplied. By diligence, one may find a precedent of some sort on any side of almost any proposition. It is a mere matter of eye-sight, time and digests. A lawyer cannot rely alone upon cases. He must run the red line of principle through all his reading and view every conclusion of every court, in the light of conscience, humanity and justice. Failing to do so, his position is akin to that of one adrift upon the sea, without rudder, or compass. It is only by the simple rules of common honesty and fair dealing that he is able to distinguish between bad precedents and good ones. It is only thus that he can know truth, and knowing, assert and sustain it. So inspired, he will not confuse the substance of justice with absurd artificialities of practice. If this be true of the lawyer it is also true of the judge."

A very familiar example of this condition is the United States Supreme Court, because of the well known fact that it decides less than fifty per cent. of its cases by a unanimous bench. For the trial judge or any other judge to accept the first precedent he may find as a finality, is often to declare to be true that which is false and to declare to be false that which is true.

The law is not thus absurd, but court opinions frequently are. Such opinions should be ignored by both lawyers and judges, for, as said by Judge Roby: "In the progress of the law no condition can arise in which any precedent can compel a court to declare that true which it knows to be untrue, or to hesitate in applying to any given set of facts, which may arise, principles according with our institutions and the spirit of natural and equal justice."

Much of the difficulty and embarrassment, occasioned by following precedents without investigating principles, may be obviated, if we would but remember that a decision of a court of last resort can absolutely determine but a single case, and that, the one decided. The decisions of courts of last resort settle cases, but not necessarily principles or questions.

THE INDIANA LOTTERY CASES

When the Supreme Court of Indiana, in 1879, declared that lottery gambling was a vested right, it determined the Kellum case that way and reversed a correct judgment of a circuit court, but it did not determine the lottery question that way, because the truth could not be transformed into error, while an error might be and was committed.

In the Woodward case, the circuit court followed the precedent of the Supreme Court in the Kellum case, and held that lottery gambling was a vested right in Indiana, thereby rendering an erroneous judgment, but, in this case, the Supreme Court ignored its own precedent in the Kellum

case, decided the Woodward case according to the principle of truth and justice, and reversed the circuit court that had adhered to the precedent announced by the Supreme Court only four years. before.

THE DRED SCOTT CASE AND LINCOLN'S DISSENT

In the decision of the Dred Scott case, the Supreme Court of the United States determined that case, but it fell far short of determining the Dred Scott question. While acknowledging that the decision in this cause absolutely and unequivocally determined the status of Dred Scott, Abraham Lincoln dissented from the opinion as a precedent, and vigorously and vehemently denounced it as unfounded from the standpoint of legal principles. For his position, Mr. Lincoln was bitterly arraigned through the public press and from the stump by political adversaries.

He was styled, "A legal non-entity;" "An anarchist;" "A judicial lunatic;" "A four-flusher;" "An inciter of disrespect for the courts;" "A panderer to mob spirit;" "a buffoon, with his ear to the ground, to catch the acclaim of public sentiment." Some of these epithets, just now, are quite familiar to the writer, because of their use and application to him by liquor journals and that element of newspapers, bribed and subsidized by saloon notices and liquor advertisements.

LINCOLN'S ANSWER

Lincoln answered his assailants by saying, in his debates with Douglas: "Judicial decisions have two

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