DISSENTING OPINIONS this decree erroneous, even granting that any decree ought to issue, and they say of the arrangement condemned by the court that they "fail to perceive why it should be left to produce its full force and effect in the hands of the individuals by whom it was charged the conspiracy was entered into. . . ." i II The truth is, Law is at best the least exact of all the sciences. It;s but the Science of Opinion. It speaks with no in herent authority, as Mathematics does. We may with confidence assert, and the author ity of the assertion defend against the world, that the whole is equal to the sum of its parts. This can no more be ques tioned in France tha'n in England; but nothing so certain can be predicated of Law. In one of those countries, the pre sumption of innocence may lie at the foundation of criminal jurisprudence; but in the other, the presumption of guilt may have the same force of law. At best it is but temporary and adaptable; nothing is so mutable; nothing improves so much with age. The sole authority it has it derives aliunde; about it must be thrown all possible sanctions; and courts must be bolstered with a respect not always warranted by the men who compose them. Thus it is that the decisions of a bad judge are as good law, in his jurisdiction, as those of a good judge. The authority of courts is not dependent upon their wisdom, but is factitious and con ventional merely; and the consequence is, that they who sit in the seats of judgment wield a vast but unstable power, which may, like fire, benefit or blight. Happily, in those countries where the people hold the lawmaking power, Law, if it be unjust, is easily changed; but if it be uncertain, the end is anarchy alone. It is not of so great importance, therefore, in such countries, that Law be just, as that it be sure. A bad but certain decision is not so dangerous to the permanence of courts as a good but
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vacillating one. The fundamental security of all peoples lies, not in the just-ice, but in the certainty, of their laws. The tyranny of all Inquisitions, all Star Chambers, all Councils of Blood, lies, not in the iniquity of their judgments, but in the irresponsible freedom of their wills, the absence of un questionable principles binding their minds, and the consequent inability of even' subject of their power, however willing, so to order his conduct as to escape. The first duty of judges is, therefore, to render more exact that science of which they are the chief professors; and in so far as they dis courage its slow and painful progress to that end, they undermine the foundations of its authority and menace the security of the people. If these simple and obvious principles are indeed of any validity, then the Dissenting Opinion is of all judicial mistakes the most injurious. Its effect on the public respect for courts is difficult to exaggerate. It is, happily, a habit of the public mind to regard the judiciary as the worthy and safe repository of all legal wisdom; but this re spect must receive a sad shock when every court is divided against itself, and every cause reveals the amateurish uncertainty of the judicial mind. It is not to be dreamed that all men should be of one mind. But it is surely to be expected that the wranglings of our judges be at least decently veiled. Obviously, if the Dissenting Opinion is injurious at all, it will be most unfortunately so in those cases which are of the greatest public moment. Yet it is the almost un believable fact, that it is the uniform justi fication of dissenting judges that the im portance of the case warrants and demands their dissent. "I am unable," says Mr. Justice Brewer, in Perry v. Haines (1903), "to concur in the opinion and judgment in this case, and deem the matter of sufficient importance to justify an expression of my reasons therefor." Mr. Justice Harlan, on December 12, 1904, in Western U. Tel. Co. v. Pa. R. R. Co., explains his dissenting
