Page:Harvard Law Review Volume 12.djvu/572

552 HARVARD LAW REVIEW. of their decisions become precedents. In many departments of their work they prefer " discretion " to precedent. Judge Wells refers to the question of the competency of an expert as a ques- tion "mainly of fact," ^ meaning that within the limits of the discre- tion which is given to the judge, he is bound by no precedent and his decision makes no precedent for any future judge. Lord Esher says that an equity judge does not bind " his successors in the decision of questions of fact ; it is decisions upon questions of law which are binding." ^ He suggests no test, however, for distinguish- ing law from fact, unless it be that in the one case the decision is and in the other case it is not binding. No better proof of the saving grace of precedent can be found than in the vagaries of judicial discretion. Sentences for crime, within the limits of the statute, have always been left to the discre- tion of the judge and the inequality of sentences depending upon the mood of the particular judge has become so flagrant that the tendency of recent legislation is to take away this discretion and intrust it to the prison authorities. Those who have had occa- sion to observe the sentences imposed by our inferior courts for small offences will 3ee the force of the opening sentence of a recent act : " When a convict is sentenced to the State Farm the court or trial justice imposing the sentence shall not fix or limit the duration thereof." ^ Jabez Fox. 1 Commonwealth v. Williams, 105 Mass. 62, 68. 3 In re Norman, L. R 16 Q. B. D. 673, 675. » St. 1898, c. 443-