, 1880-03-21
PRECEDENT ANDaLAW.

4f{ntf9-SAle3,
sales, 1865; total consideration, S17,U2
PRECEDENT AND4LAW.
Two OF the Great Forces that Hold So.
c1ety Together.
Londor. Pall-MaA Gae<tte.
At this day the regard for precedent which
pervades not only the law itself. but every de-
partment Of life that has become colored BY
legal ideas, appears to us thing requiring e1-
PLANTATION. And very fair and reasonable ex-
plantations are Forthcoming. Not TO neglect the
results of our predecessors experience In like
matter ia easily admitted the plafnest counsel
of common sense. Nor Is 1t difficult to see the
advantage Of applying this most general rule
with certain artificial nicely for particular
purposcs- Other things being equal, that con-
clusion is most probable which has been arrived
at upon the fullest discussion and ripest
consideration. Thus the decision OF three
or four Judges after careful argument
and time taken to prepare the Judgment Is
manifestly Of more weight assuming NO great
disparity Of abilitics) than that Of single Judge
who has to nuke up his mind on the spot Hence
the gradation Of authority In our English sys-
TEN OF judicial precedents may be nationally as
well as practically justified And on most qles-
tions affecting action we feel that the Judgment
of a competent and adequately informed per-
Ron IN n question OF the same or q like kind is
considerable help for shaping our own course.
This is in part Perhaps because the Teasons ns
and motives OF conduct IN any @ put the slmP'ess st
that there ia actually more to be learnt from
prudent mans actions than from the reasons he
n much % more IS to be said for respect for pre-
oedent On the ground Of reasonahlencss-
the W ef Il = there asf
decision once arrived ut will be followed In the
like case in time to co1ne, the uncertainty TO OF
not be agitated forever: Interest rel put|iees ut
sit Hns littum is good maxim Tor standing
causes Of litigation IS well as for every lawsuit
In particular. And on this head. also, u would
be easy but supertiuons to enlnrge- There Is
yet another ground OF eohFeniemGe wn,fo hc hi, n
is grc:,ter than 1t seems. Two sorts OF cases
present much difficulty Of choosing on q principle
several ways Of doing the same thing
which are in themselves indifferent, and
those where the question Of substance IS
artainabie Yet something has to be done: and,
the choice being once made, it becomes naturnl
for the saving of trouble ana r m WIN 10 40
similar case recurs. The fact OF having taken
particular course once will Of itself determine a
lions are repeated. In the sama way the ex-
perience Ut a thing having been done by others
will on Il renewal of the circumstances K1Ee rise
This is general tnct Of human nature, Included
by psychologists in the statement of whnt Is
called the law Of association. Thus single In
stance makes precedent, and the precedent
tends to confirm tSslf BY repetuo;n.+ ts o. +h onne-
in which the idens Of precedent and custom are
originally formed. WHAT has been done once ts
done again, not because it seems the best thing
tendency to do it which IN the absence Of other
and stronger motives will prevail The more
often it Is done the stronger will DO the expecta-
ton Of It's being done yer again on the next Oc-
casion, and this will ut kngth become sense OF
necessity. No words are needed to prove that
ereat extent the slaves 1t habit; and ancient
customs and customary laws are special kind
of habit produced in times aud circumstances
less men begin to ask FOR at least the show
Of reasons ut very early stage OF go
Ella. eao gfowa tase stanes eaourb lie thinx IS readily
made u explain itself. 4 man ignorant Of the
arts of exuct reasoning, and feeling. IN himself
the impulse to do what he has done before. need
have no difficulty III accepting as the sufficient
foundation of custom the fact that it is accus-
toned 1t is the familiar and NATURAL thing,
therefore necessary and right Our fathers
have always done so,' is the standing reply 10
the inquiries Of astonshed travellers or of the
self. And it.may well seem conclusive to mind
which has not learnt to distinguish the expecta-
ton that the future will resemble the Pust from
the use Of experience as guide to deliberate
action The nal or nRQht Of natural sequence is
cunfuunded By this untutored contemplation
with the ouyht Of rational conduct and ethical
| duty.
Another point is to be noted In the psychology
| OF custom, which may be Of some Importance.
| We think of customs us established by long use.
| and In lawyers idea OF custom this is vitui
element. But this is because we have learnt how
great are the dangers of error it we conclude
from solitary or few instances either as to relA-
tons OF cause aud effect us to the convenience
| of particular course Of action. There is no
| reason to suppose that when society WAS in Its
| infancy mankind were troubled with any such
scruples- II we may draw differences from the
childhood OF the individual to that of the race,
one ur two instances probably suttiCed to make q
good custom for our prehistoric ancestors. lt1
| notorious that young children will appeal to
Us soon rs they Gun frame coherent sentence.
leave Of a eompetent authority, As
| already had as by Offering such
Prohibition Ut sports threatening danger to the
child or destruction TO furniture But II the
authority referred to turns out tRs generally
hAppens) not to support the argument. the
chiid's artlcss cunning falls back on the defense
Of bare precedent " One day did it. or words
perfect seriousness and confidence; and. though
the plea is overruled, it is at least doubtful
whether the pleader is intellectually satisfied.
1t may be suspected that we have In these invol
untary revelations Of infant logic the true prir1
tive form OF the universal argument Of archaic
conservatism. One day did it ~ is the SIM
pie and undisguised statement Of the mental
process more plausiby expressed by children Of
lnrger growth in the shape OF t. Our fathers
have always done so.' The child is father OF
served with adequate cure; and the study Of
children's ways and language has not tmproba-
bly, considerable part before it in the psyche
logical researches Of the near future,
JIM.