Page:Harvard Law Review Volume 9.djvu/63

JUDICIAL PRECEDENTS, ' 3S from the tacit consent of the State, make part of our unwritten law. What has been said of decisions of the Court of Session is also applicable to the judgments pronounced upon appeal, by the House of Lords : for in these that august court acts in the charac- ter of judges, not of law-givers ; and consequently their judgments, though they are final as to the parties in the appeal, cannot intro- duce any general rules which shall be binding either on themselves or inferior courts. Nevertheless, where a similar judgment is re- peated in this court of the last resort, it ought to have the strongest influence on the determinations of inferior courts." ^ In his Principles, Book I. tit. i, § 17, Erskine uses substantially the language of his Institutes. In the eighteenth edition by Mr. Rankine (1890) the following is added: There is a scale of authority from the House of Lords down to the humblest tribunal ; and a reported ground of judgment — not being a mere obiter dicttcm — expressed in one case by a superior court, is binding in a similar case in an inferior court, unless and until it is itself reversed or displaced by statute."^ The example of the English courts, and indeed the whole tone of the law in England, may have had an influence in elevating the importance of judicial precedents in Scotland above the condition which they fill on the Continent; and also the power given to the Court of Session actually to legislate by means of Acts of Sede- runt may have aided to give weight to their judgment in litigated cases. On the other hand, the fact that the court of ultimate appeal, the House of Lords, was a tribunal composed entirely of English judges (for I believe no one was ever called from the Scotch bench or bar to the House of Lords until the Appellate Jurisdiction Act of 1876), and the irritation which prevailed in Scotland at this state of aff'airs, had very likely considerable eflect in maintaining in that country the doctrine that precedents do not make law. Common Law. — In England, and in those countries where the English law prevails, a different theory now exists. While in Germany, jurists insist that a decision by a court has, aside from its instrinsic merit, no binding force on a judge, even on a judge from whom an appeal lies to the court rendering the decision, it 1 See also the language of the earlier writers, Mackenzie, Inst. Book I. tit. i, §10 (1716) ; Bankton, i Inst. Book I. tit. i, § 74 (1751). 2 See also 4 Leg. Obs. 289; 24 Journal of Jurisp. 140.