An Essay on Professional Ethics | Page 9

to the evils of a
licentious invasion of it, he left it to our annual legislature to correct
such defects in the system as time either created or exposed; and better
foundation in the law can no man lay." It is not to be denied that there
is some difficulty in stating with accuracy the limits of the rule stare
decisis. One, or even more than one, recent precedent, especially when
it relates to the application rather than to the establishment of a rule, is
not of so binding a character that it must be followed, even though
contrary to principles adjudged in older cases: but it is just as clear that
when a decision has been long acquiesced in, when it has been applied
in numerous cases, and become a landmark in the branch of the science
to which it relates, when men have dealt and made contracts on the
faith of it, whether it relates to the right of property itself, or to the
evidence by which that right may be substantiated, though it may
appear to us "flatly absurd and unjust," to overrule such a decision is an
act of positive injustice, as well as a violation of law, and an usurpation
by one branch of the government upon the powers of another. An
example will illustrate this position. In the case of Walton v. Shelley (1
Term Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief
Justice, decided that a person is not a competent witness to impeach a
security which he has given, though he is not interested in the event of
the suit, on the trial of which he is offered. In Jordaine v. Lashbrooke (7

Term Rep. 601), the same court, in 1798, under the presidency of Lord
Kenyon, rightly overruled that decision. Now it so happens that Walton
v. Shelley was recognized as authority and followed in Pennsylvania, in
1792, in Stille v. Lynch (2 Dall. 194), before it had been overruled in
England: and though limited as it was understood to be in Bent v. Baker
(3 Term Rep. 34), to negotiable paper (Pleasants v. Pemberton, 2 Dall.
196), it has never been varied from since that time, though it has
frequently been admitted that Walton v. Shelley was properly overruled.
It ought not now to be overruled in Pennsylvania. "After the decisions
cited," says Judge Rogers, in Gest v. Espy (2 Watts, 268), "this cannot
be considered an open question, nor do we think ourselves at liberty
now to examine the foundations of the rule." Unfortunately our
Supreme Court have not always put this sound and wise limitation
upon their own power. In the case of Post v. Avery (5 W. & S. 509),
they declared in regard to a rule of more than thirty years' standing, and
confirmed by numerous cases, that they had "vainly hoped that the
inconvenience of the rule would have attracted the attention of the
legislature, who alone are competent to abolish it;" but as nothing was
to be expected from that quarter, "they were driven by stress of
necessity" to overrule a case expressly decided on the authority of the
rule. (Hart v. Heilner, 3 Rawle, 407.) And two years afterwards, after
having made the remarkable declaration that the legislature alone was
competent to abolish the rule, they nevertheless pronounced it
"exploded altogether." (McClelland v. Mahon, 1 Barr, 364.)
Lord Bacon says of retrospective laws: "Cujus generis leges raro et
magna cum cautione sunt adhibenda: neque enim placet Janus in
legibus." Without any saving clause may the epithet and denunciation
be applied to judicial laws. They are always retrospective, but worse on
many accounts than retrospective statutes. Against the latter we have at
least the security of the constitutional provision that prohibits the
passage of any law, which impairs the obligation of a contract,
executory or executed; and it has been well held that this prohibition
applies to such an alteration of the law of evidence in force at the time
the contract was made, as would practically destroy the contract itself
by destroying the only means of enforcing it. There is no such
constitutional provision against judicial legislation. It sweeps away a

man's rights, vested, as he had reason to think, upon the firmest
foundation, without affording him the shadow of redress. Nor could
there, in the nature of things, be any such devised. When a court
overrules a previous decision, it does not simply repeal it; it must
pronounce it never to have been law. There is no instance on record, in
which a court has instituted the inquiry, upon what grounds the suitor
had relied in investing his property or making his contract, and relieved
him from the disastrous consequences, not of his, but of their mistake,
or the mistake of their