Cases as " The Original Sources of the Law. of modern law to set up standards of con duct and judgment which commend them selves to the human reason. And we see now, that the law forces men to carry out their agreements as it is reasonable to insist that these have been understood. It inter prets their wills and construes their statutes as it is reasonable to read the language used. And it requires them to exercise reasonable care in their conduct toward one another. So rules in the law of evidence which some times seem to shut out investigation are upheld simply because they are founded upon a knowledge of the uncertainty of human testimony and every new statute adopted is supported by the claim that it is the best, the most reasonable, rule on the subject. These instances show that the ever active and most deep-seated source of our law is reason, which is thus bringing all rules to submit themselves to its test. It is reason also that is constantly striving to get away from pernicious precedents, and the fact that so frequently in these days the effort for freedom is successful is most promising. The struggle to ascertain the " why " of old rules, the rebellion against precedent simply because it is precedent, and the de termination to accomplish justice are most encouraging signs of the times. The human reason should not be cramped in any pro fession and least of all in the law. And to follow precedent at the sacrifice of reason is superstition. What would reasonable men think of the science of medicine if it set its face against new remedies and new meth ods because the older remedies and meth ods had been approved by high authori ties? And what must they think of the law when it refuses to take cognizance of new thought and of the modern deter mination to get at justice because high authorities long ago settled how specific questions should be regarded? Unfortun ately many instances arise where courts of the present day still cling to old and faulty
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precedents. And no more conspicuous or more disastrous example of this can be given than that afforded by the decision in the Tilden Will Case in the State of New York. ' This decision violated the fundamental principle upon which the law of the interpretation of wills is built, and the court, happily by a narrow majority, refused to carry out the intention of the testator mainly because of former decisions which established a technical rule of ques tionable value and one that has since been altered by statute.2 Fortunately many instances might also be cited to show that courts have in recent years broken away from obsolete rules. And even in a late issue of the " Albany Law Journal " attention was called to the number of times one of the most conser vative and able state courts in our country has reversed its own decisions, and the action of the court in so doing was highly commended.3 This changing of view is necessary to progress in jurisprudence and is a striking proof that the decided cases are not the true sources of our law. If we look to the past, all acknowledge the great value of the variety of facts presented in the accumulated cases. Is it not reason able to conclude that the new facts of pre sent and future cases will illustrate rules of law in such a way that modification and change are necessary? Then too, the co ordinate jurisdictions in this country tend greatly toward a modification of views and the establishment of just rules. The con flict may go on for years, but eventually, with the aid of new facts and with the light derived from other courts, many conflicting rules will be harmonized. If we look upon the law as founded in reason, no difficulty is experienced in ob serving changes in rules. The difficulty comes from supposing that precedents are 1 See 1 30 N.Y. 29. 2L. 1893 C. 701. 1 Sept. 9, 1893.
