Page:Harvard Law Review Volume 9.djvu/69

JUDICIAL PRECEDENTS. 41 The same rule as to the duty of a lower court to follow a prece- dent established by a higher court prevails in America as it does in England. It has been said in the United States that a judgment made by an equally divided court, though conclusive in the particular case, should have no weight attached to it as a precedent. See Bridge V. Johnson, 5 Wend. 342, 372 ; People v. Mayor of New York, 25 Wend. 252, 256; Etting v. Bank of United States, 11 Wheat. 59, 1^' There are several questions within the domain of the Common Law on the effect of precedents. For instance : What is the degree of authority, in the courts of one jurisdiction, of the decisions in courts of other jurisdictions, as compared, on the one hand, with the decisions of the former courts themselves, and on the other hand with dicta of judges, or the writings of non-judicial persons? My learned colleague. Professor Wambaugh, has some valuable suggestions on this in the ninth chapter of his treatise on the Study of Cases. Again: What is the weight attributed in the United States to the decisions of the English courts made (i) be- fore the planting of the Colonies ; (2) between the planting of the Colonies and the American Revolution ; (3) since the Revolution? So again : What authority in the Federal courts of the United States is attributed to the decisions of the courts of a State as determining the law of that State ? Or, finally : Are judicial decisions to be considered as making new law, or as simply declaring law previously existing? But to discuss these here would exceed all reasonable limits. John Chipman Gray.