Page:Harvard Law Review Volume 8.djvu/365

SUPREME COURT ON JUDICIAL LEGISLATION. 349 fessor Thayer, that, provided the ruling of the first decision is per- missible or within reason, it will be followed, whether it be right or wrong. This is more than the occasion calls for. Why there should be such a rule of law for contracts brought in this way before the Federal courts, more than for any other contracts, it is not easy to see. Professor Thayer's careful limitation of the rule to this pecu- liar jurisdiction seems a tacit admission that the rule cannot be defended as a principle of general jurisprudence. Why is such a principle any more applicable to the decisions of State courts than to those of the Supreme Court itself? In Hepburn v. Griswold,^ the court declared the Legal Tender Act invalid as applied to contracts made before its passage, and in Knox V. Lee ^ this decision was overruled and the Act was held constitutional. Is the latter decision to be held inapplicable to the case of a party who purchased a money obligation after the former had been rendered, and presumably upon the faith of it? To answer affirmatively illustrates the danger of introducing the practice of considering prior decisions otherwise than upon their merits, and the confusion in the law which would result were such decisions to be judged according to the positions assumed by parties in reliance upon them. The burden of showing the neces- sity of such a practice in the jurisdiction now under examination rests upon him who affirms it. In overruling Hepburn v. Griswold, the court exercised a power which in Gelpcke v. Dubuque it denied to the Supreme Court of Iowa. Why should a retroactive decision to the prejudice of con- tracts made on the faith of a prior decision be bad in the one case and good in the other? The Supreme Court itself would doubtless repudiate the suggestion that the rule is one of general application in contract cases. How does the object of the Federal courts' jurisdiction in cases where the parties are citizens of different States require such a rule? Has it any connection with that juris- diction unless the constitutional prohibition is invoked and the analogy of a retroactive legislative act is applied? Inasmuch as the general rule is confessedly to follow the last State decision, it would seem that, without the suggestion of any principle to distinguish the cases affected by local prejudice, the argument which makes such a course exceptional is fairly open to 1 8 Wall. 603. 2 12 Wall. 457.