Honorary Members.

The Reverend J. F. D. Maurice.

Professor Mittermaier, of Heidelberg, P.C.

His Excellency F. A. Von Langenn, P.C., President of the Supreme Court of Appeal of Saxony.

The Herr G. S. Baumgarten-Crusius, late Vice-President of the Supreme Court of Appeal of Saxony.

Professor Michelsen, of Jena, Councillor of the Court of Appeal of the Grand Duchy of Saxe-Weimar.

The Herr T. C. Von Büttel, District Judge in the Grand Duchy of Oldenburg.

The Hon. W. H. Draper, C.B., Chief Justice of the Court of Common Pleas of Upper Canada.

David Dudley Field, Esq., of New York.

Professor Katchenovsky, of Kharkov.

Sir A. T. Xidias, K.C.M.G., President of the Supreme Council of Justice of the Ionian States.

Sir G. Marcoras, K.C.M.G., Member of the Supreme Council of Justice of the Ionian States.

331

XVIII.—IS A JUDICIAL TRIBUNAL, EITHER OF THE LAST RESORT OR OTHERWISE, BOUND BY THE PRINCIPLES LAID DOWN BY ITSELF ON PREVIOUS OCCASIONS? BY WALKER MARSHALL, Esq. (Read November, 6, 1860.)

THIS question is one, as it appears to me, which in the same breath may be treated juridically and with an immediate reference to our own tribunals; for so little can be found of direct or dogmatic doctrine in our system of law, as to the precise extent to which a tribunal is concluded in future by any new principle laid down and applied by itself in a particular case, that the question of what is the extent may be considered as correlative with what ought to be the extent to which it is bound by such previous decision. Perhaps, however, so far as our judges have committed themselves to any opinion on the subject, there will be found a preponderance of opinion expressed in favour of the position that the decisions of a court, upon a matter of principle or a pure question of law, are absolutely binding upon itself for all time to come, so long as the contrary has not been propounded by any tribunal of superior jurisdiction; while, on the other hand, the practice of the courts will be found not to be consistent with this theory; and that in numerous instances our courts have overruled their own decisions, in cases where neither the legislature nor any superior court has intervened with a declaration of the contrary.

It is, I should think, scarcely necessary to free the question from being blended or confounded with that of the effect of the judgments of superior courts. Of course, it is undoubted that the decision of a court in which a principle of law pertinent to the case has been enunciated and acted upon, is, if not contrary to the decision of any court superior to itself, binding on all tribunals of an inferior jurisdiction, particularly in cases where an appeal lies from the inferior to the superior jurisdiction. And it is binding in this way, that there is a

species of estoppel upon the inferior court against controverting or gainsaying such principle: if satisfied that the rule is applicable to the case immediately before it, the duty of such court is to apply it, notwithstanding it may be of opinion that the principle is erroneous.

In dealing with this question, considerations affect it, when considered with reference to a court of final jurisdiction, somewhat different from those which arise when it is considered with respect to the decisions of a court in a matter upon which an appeal will lie. It is, however, not so much on this account as from a fatal necessity of impugning, if possible, the hostile decisions of a court of ultimate appeal, that this question has been more frequently discussed at the bar of the House of Lords than in any other of our courts. If a court, so to speak, of intermediate jurisdiction, were satisfied that a previous decision of its own was erroneous, when cited in a subsequent case, it might say-" We are convinced that we laid down then an erroneous principle, we misapprehended the law; with our new light we think that is not law; but we are bound by it, we must give judgment in accordance with it; but you, against whom this judgment is given, are not without remedy; carry the case to a court of error, and they will set the matter right." Where, however, the court is one from which there is no appeal, its language would be-"We did, it is true, in the previous case, decide contrary to law; but we did so decide; we must abide the consequences, and so must you the suitor, and so must all suitors for all time to come."

There is a lax morality that much delights in saying, that truth is just what each man supposes to be the case. And so it might be said that law is just what a constituted tribunal declares it to be, and that so it continues until reversed; and then, but not till then, it ceases to be law. The latter notion I believe to be as erroneous as the former. It is an old definition, that law is the perfection of reason. almost every question of pure law the premises are settled: if all the courts were always to reason with perfect correctness, no decisions would be reversed, no judgments overruled,

In

all would arrive with the utmost certainty to the same conclusion. Bad law is, in many instances, nothing else than bad logic. But a conclusion which has been attained by a course of false reasoning, or by the omission of a necessary element to correct reasoning, is never otherwise than a false conclusion. It is not the less a false conclusion because it is the judgment of a court of competent jurisdiction. Moreover, its falsity may at any time be demonstrated. It is binding on the parties, in some cases upon all the rest of mankind; but does expediency or convenience require that it should be binding on the court itself in all future cases?

I take it to be abundantly clear, that the three superior courts of common law exercise an independent judgment upon any matter brought before them; and that, although the same point may have been decided in either or both of the other courts, the duty of such court is to consider it for itself; and it is at liberty to arrive at a different conclusion, and to give judgment against the party in whose favour the other court would, acting upon its own decision, have decided. The instances of conflict between the decisions of these tribunals are too numerous to admit of doubt being entertained of the fact-cases of conflict which do not arise from each court so deciding, ignorant of the judgment in the other; but where the one has repudiated the doctrine which it knows to have been laid down by the other tribunal. Thus, in a recent case, the Court of Queen's Bench and Common Pleas construed the word "may" in the County Courts' Act as permissive; the Court of Exchequer, with full knowledge of this decision, held that it was not permissive but obligatory. An Act of Parliament settled the difference. Without the exercise of much industry many examples would be found, in which one court in Westminster Hall has decided differently from another; and all who are conversant with the practice of these courts, and in the habit of attending them, know that the same learned judges will listen with patience to an argument impeaching a decision of another of the courts, who would display that Christian virtue in a minor degree if the object of attack were a decision of their own.

The same