Page:Harvard Law Review Volume 9.djvu/68

4 40 HARVARD LAW REVIEW. 9 H. L. C. 338, 339. Lord Campbell's view seems to have pre- vailed. See Mersey Docks Trustees v. Gibbs, L. R. i H. L. 125, per Lord Wensleydale ; Hadfield's Case, L. R. 8 C P. 313. The most striking difference in the Common and Civil Law, at least as the latter is administered on the Continent, is that under the Civil Law a judge is at liberty to disregard the decision of a higher court. In the Common Law this is never done unless the higher court has committed a palpable error, as for example in Drummond v. Drummond, L. R. 2 Eq. 335, where Lord Westbury had decided a case in ignorance of a statute. The only other case I recall in England is Hensman v. Fryer, L. R. 3 Ch. 420, where the ruling of Lord Chelmsford, C, that specific devises and pecu- niary legacies should abate pro rata^ has been repudiated by all the Vice Chancellors before whom the question has since come. Collins V. Lewis, L. R. 8 Eq, 708; Dugdale v. Dugdale, L. R. 14 Eq. 234; Tomkins v. Colthurst, i Ch. D. 626; Farquharson v. Floyer, 3 Ch. D. 109. This was not the case of forgetting a statute, but of a sheer blunder. All the recent writers agree that this was so. In the United States the general rule and practice as to the weight due to a precedent in the court which made it or in a court of co-ordinate jurisdiction is substantially the same as in England. Naturally, considering the character of the people and of institu- tions, the weight attached to judicial precedent is somewhat less than in England, but the difference will hardly admit of any pre- cise definition, and it does not seem worth while to attempt it. The House of Lords will not overrule its own decisions. No such doctrine prevails in America; the highest courts of the respective States, as well as the Supreme Court of the United States, all con- sider that they have the power to depart from their former rulings, however inexpedient it may be to exercise it. The Supreme Court of the United States has overruled its previous decisions in ques- tions of the gravest moment. Thus in 1825 that court decided that the Admiralty Jurisdiction did not extend on the great rivers above the ebb and flow of the tide, and reaffirmed the doctrine in 1837. But in 1851 it overruled those cases, and held that the Admiralty extended over the great rivers wherever actually naviga- ble. Again in the Legal Tender Cases that court in 1871 changed the ruling which it had made in 1870. Great feeling prevailed in some quarters as to the supposed mode in which this change had been brought about; but the power of the court was not questioned.