An Essay on Professional Ethics | Page 9

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 predecessors. The man who, on the faith of Steele v. The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811, and treated as so well settled in itself and all its logical consequences, that in 1832 (Hart v. Heilner, 3 Rawle, 407)