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CHAPTER 5: THE PRINCIPLE OF PRECEDENT - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE PRINCIPLE OF PRECEDENT
The common law in its ultimate origin was merely the custom of the King’s courts; the regular routine which they developed in the administration of justice became settled and known, and therefore served as the basis upon which people could forecast with some certainty the future decisions of the courts. The growth of such a custom depends to some extent upon the habit of following precedents, although it is more than likely that this development took place quite unconsciously. From earliest times, therefore, the royal courts have always had some sort of regard for previous decisions, although at first, no doubt, this was based upon a desire to save trouble. There was no need to consider a question de novo if it had recently been decided; and the whole principle underlying the Court of Common Pleas, which, as we have seen, was a court of limited and delegated jurisdiction, must have encouraged it to develop a routine in handling its business. This does not mean that there was anything in the twelfth century even faintly resembling the modern principle of precedent; there was merely a tendency to establish a procedure, and perhaps to adopt a few substantive principles which, taken together, constituted the custom of the court.
BRACTON’S USE OF PLEA ROLLS
The Court of Common Pleas was about eighty years old when Bracton was engaged upon his treatise, and as every historian has observed, that treatise is distinguished by its extensive use of cases. Some consideration must therefore be given to the use which Bracton made of the material which he collected in his famous Note Book. The very first page of Bracton’s treatise throws remarkable light upon his point of view. He asserts that the present bench is much inferior to its predecessors; foolish and ignorant judges, who have mounted the judgment-seat before they have learnt the law, have corrupted its doctrine; they decide cases by fancy rather than by rule. And so Bracton, using words which would sound presumptuous in any lesser man, announces his intention of instructing the younger generation in the principles of the law by writing this treatise, which he solemnly commends to perpetual memory. Bracton’s book, therefore, is an attempt to bring back the law to its ancient principles, and the attempt is made by one whose official position was no doubt impressive, but who was still more conscious of his own intellectual powers and of his mission in restoring the law. In this same sentence he tells us that he looks largely to the decisions of a previous generation of upright judges together with their private opinions—and the two thick volumes of his Note Book justify his claim that he collected them diligently and laboriously. His intention, therefore, is to use cases. But it must be observed that whatever use he made of these cases was necessarily peculiar to himself. He alone of all the lawyers in England sought and obtained access to the plea rolls; he used the originals, and there were no copies until he made one for his own convenience, containing the cases which he selected.1 None of his contemporaries attempted such a thing. Bracton clearly was the only lawyer of his day who chose to exert a good deal of court influence in order to obtain the loan of numerous plea rolls, and who was ready to devote immense pains and labour in searching hundredweights of manuscript and having his discoveries copied in a very substantial volume. Clearly, then, we have no right to assume that Bracton’s use of case law was any part of contemporary legal thought. On the contrary, it is clear that he was undertaking research into the present and former condition of the law by a novel method which he had devised, namely, the search of plea rolls, which was a new discovery in his day. Any use of cases on Bracton’s lines by the profession at large, or even by the bench alone, would have been manifestly impossible. The plea rolls are immense in number and there was and still is no guide to their contents; they have to be read straight through from beginning to end without any assistance from indexes or head-notes.
BRACTON’S USE OF CASES
Bracton, therefore, had discovered a new instrument of research, and owing to his fortunate official position he was enabled to use it. If we examine the use which he actually made of the cases he discovered, it will be clear at once that he was not actuated by any of the modern ideas of case law. Many of the cases he uses are quite old, and he admits that many of them are not law to-day. But the whole of his argument is that his contemporaries have perverted the law, and that the recent cases are bad ones, while the old cases were good—intrinsically good, that is to say, as embodying sound principle. In other words, Bracton has no hesitation in using cases which we should call out of date or overruled, in order to maintain that the law ought to be something different from what it is. From this it is clear that the whole of Bracton’s position would fall if decisions, as such, were in any modern sense a source of law. Under any such theory if decisions were authoritative a choice would have to be made between contradictory decisions, and so a theory of case law would have to be devised. It is the very absence of such a theory which enabled Bracton to carry out his plan, and that plan seems to have been to state in logical order a series of legal propositions, and then to illustrate their working from cases. Bracton first states his principles and then adduces his cases as historical evidence of the accuracy of his statements. This is a vastly different method from taking the cases first and deducing rules of law from them. Bracton’s whole purpose is to reconstruct, and, if possible, to revive the law of nearly a generation ago; he would put the clock back and restore the court’s custom as it used to be in its best period, and it is as evidence of that custom that he uses his cases. In Bracton’s hands a case may illustrate a legal principle, and the enrolment may be historical proof that that principle was once applied, but the case is not in itself a source of law.1
BRACTON’S INFLUENCE ON CASE LAW
This does not mean that Bracton’s novel method of studying law was without effect; we have already suggested that his use of cases may have interested his contemporaries and the succeeding generation, and it may be that it prompted other lawyers to collect records of cases when they had the opportunity.2 Indirectly, therefore, Bracton’s influence may have something to do with the rise of the Year Books. The plea rolls of Edward I show that litigants would cite older cases.3 Access to the plea rolls was still almost impossible to obtain, and so, instead, reports were circulated of discussions in court as the next best thing—and with the growth of scientific pleading these reports were superior for practical purposes to the plain transcript of the record which Bracton used, for the reports give the discussions and the reasons for the matters which appeared upon the record. Of the Year Books we have already spoken; they cover several centuries and copies are fairly numerous; but were they used for the same purposes as a modern law report? There seems no doubt that they were not. There are quite frequent cases in the Year Books where we find judges or counsel mentioning previous decisions. They seem generally to quote from memory; sometimes they give us the names of the parties, but not always. Occasionally such a citation is answered by a denial that the situation is the same; more rarely it will be retorted that the case cited is bad law; a little more frequently the court will indicate that whatever the older case may say, the court does not intend to apply that principle.1 In short, the citation of a case in point may perhaps be persuasive enough for counsel to think it worth while, but it is certainly not in the least degree binding.
THE YEAR BOOKS AND PRECEDENT
And yet, on the other hand, when a novel or important point is raised, the court is fully conscious that its decisions may start a stream of other decisions in a particular direction. In 1274 there was a remarkable test case between the Queen of Germany and the Earl of Cornwall on the law of dower in which the queen spoke “for the common benefit of other ladies seeking dower in the future”2 and a generation later, in an early Year Book we find counsel reminding the bench “that the judgment to be given by you will be hereafter an authority in every quare non admisit in England”,3 but, as Professor Winfield remarks,—
“this contention does not go beyond insisting that the judges are expected to keep the law unchanged in pari materia. It falls very far short of arguing that in later cases on writs of quare non admisit this case will be cited to them and that they will have to follow it.”4
This is clearly in accord with the opinion of the best legal theory of the Middle Ages; in 1315 Bereford, C.J., quoted from Bracton the well-known adage that non exemplis, set racionibus adjudicandum est.5
Still, it would be rash to say that there was no conscious judicial legislation in the Year Book period; in 1305 Hengham ordered a party to use a particular procedure, adding “and consider this henceforth as a general rule”.6 In 1310 Chief Justice Bereford observed that “by a decision on this avowry we shall make a law throughout all the land”.7 He certainly did not mean that the Year Book report of this case would be quoted as authoritative in later cases, for we are still clearly in the period when the common law was primarily the custom of the King’s Court; the decision of an important point after due deliberation added one more element to the mass of custom which the King’s Court applied—and, as we have already seen, the remarkable feature about custom was the ease with which it grew up and the facility with which it could be changed. Even such striking words as those we have just quoted cannot be properly interpreted as evidence of the existence of a system of case law. Even in the later Year Books down to the fifteenth century the same observation holds true; the Year Books themselves (of which there were a goodly number by this time) were not regarded as collections of authoritative or binding decisions. The nearest resemblance to such a notion is to be found in some remarkable words of Chief Justice Prisot in 1454. In spite of three large folios of discussion Prisot maintained that the matter was clear:
“If we have to pay attention to the opinions of one or two judges which are contradictory to many other judgments by many honourable judges in the opposite sense, it would be a strange situation, considering that those judges who adjudged the matter in ancient times were nearer to the making of the statute than we are, and had more knowledge of it. . . . And moreover if this plea were now adjudged bad, as you maintain, it would assuredly be a bad example to the young apprentices who study the Year Books, for they would never have confidence in their books if now we were to adjudge the contrary of what has been so often adjudged in the books.”1
Clearly there is the faint beginning of a more modern spirit in these words; the Chief Justice is seeking the contemporaneous exposition of the statute in question and maintains that there is a balance of authority in favour of his view. His objection to going against that authority is that it would be “strange”—a common expression in the Year Books for “inconsistent”. He would strike a balance between “some opinion of some judge or two” and many judgments by several honourable judges; but even then the result is not the discovery of an authentic binding precedent.2 The thought of a decision against such a weight of authority shocks him chiefly because it will confuse law students and shake their confidence in their books; which perhaps is another way of saying that even a mere student in reading the case would detect its inconsistency with established principle, and would perhaps hardly credit what he read. This is possibly the meaning of some other passages in the Year Books where the court finds it salutary to look at a proposition from the point of view of the law student; Bereford explained his decisions “for the sake of the young men who are present”, and down to the eighteenth century judges in court would bear in mind the fact that a judgment might be expanded into a lecture for the law students who were present.3 Clearly, students studied their law in court and also in the Year Books, and as late as 1454 an awkward decision in the Year Books will be criticised (as we have seen) because it is confusing to students. But the most significant part of Prisot’s remarks lies in the fact that he regards even the decisions of many honourable judges as only persuasive; neither he nor the other lawyers who argued the case regarded themselves as bound by any of the decisions mentioned.1
CUSTOM AND PRECEDENT DISTINGUISHED
An important point to remember is that one case constitutes a precedent; several cases serve as evidence of a custom. In the Year Book period cases are used only as evidence of the existence of a custom of the court. It is the custom which governs the decision, not the case or cases cited as proof of the custom. Nor does it appear that a court would follow a case where it felt the result would be mischievous. The distinction is clearly seen when mediaeval practice is contrasted with that of our own day; at the present time it is possible for a judge to explain that his decision works substantial injustice, and is questionable on principle, but he is bound by a particular case. This is a typical example of the working of the principle of precedent. Such things are not to be found in the Year Books, however. A single case was not a binding authority, but a well-established custom (proved by a more or less casual citing of cases) was undoubtedly regarded as strongly persuasive.
EXCHEQUER CHAMBER CASES
We have already mentioned the constitution of the court of discussion which was held in the Exchequer Chamber.2 Decisions given by this imposing array of judges enjoyed exceptional prestige. In the popular speech of the sixteenth century a “chequer chamber case” means any difficult matter which needs mature deliberation and authoritative decision.3 The judges themselves shared this respect for the decisions reached by all the benches assembled. A striking example of this is an incident in 1483 when the chamber reached a decision on a case originating in the court of common pleas by a majority. When the chief justice of the common pleas gave judgment, he explained that he disagreed with the decision of the chamber, but was bound to adopt the view of the majority.4
This, no doubt, was merely the application of the majority principle, but the extension of it to other situations was almost inevitable. If the decision of the chamber bound the judges who took part in it, there would soon follow the question whether it might not bind judges who were trying subsequent cases involving principles which the chamber had previously settled.
In the sixteenth century this actually took place, and in the seventeenth it was settled that a decision of the Exchequer Chamber was a binding precedent. Coke asserted that a resolution of all the judges was almost as high as a statute,1 Bacon urged that even the chancellor would yield to the opinion of all the judges;2 in 1602 a decision of the chamber was referred to as “the resolution of all the judges of England” which was “to be a precedent for all subsequent cases”,3 and in 1686 Herbert, C.J., announced it as “a known rule that after any point of law has been solemnly settled in the Exchequer Chamber by all the judges, we never suffer it to be disputed or drawn in question again”.4
Here we find for the first time the principle that a single case may be a binding precedent, but such high authority attaches only to decisions of the Exchequer Chamber; it does not apply to decisions of either bench, nor to those of the House of Lords.
THE AGE OF THE REPORTERS
When we come to the sixteenth century we get a little nearer the modern point of view, although even such a reporter as Dyer thought it worth while to report what the judge said privately and what was said in mock trials in Lincoln’s Inn.5 If he uses the word “precedent” in 1557 (which Sir Carleton Allen thinks is the first occurrence of the word) it is merely to tell us that in spite of two “precedents” the court adjudged the contrary.6 At about the same time there is a passage in Plowden wherein it is stated “that the records of every court are the most effectual proofs of the law in relation to the things treated of in the same court”;7 but the examples which he gives are all matters of criminal law, and it is well known that the Crown frequently had its records searched where royal interests were involved—as they were in matters of treason and felony. There is no indication that in Plowden’s day anyone save a Crown lawyer would usually be allowed to search Plea Rolls for precedents.
As for cases (apart from records) the continuance of the mediaeval attitude is clearly shown by the remark of Wray, C.J., and Gawdy, J., in 1587: “as he who is a bastard born hath no cousin, so every case imports suspicion of its legitimation, unless it has another case which shall be as a cousin-german, to support and prove it”.8 It is when we come to the time of Coke that we find the citation of precedents particularly common, and the theme of his discourse is still that “two or three precedents” cannot prevail against a long catena of older authority.1
After the Restoration we find a few rules judicially laid down to govern their use. In 1670 Chief Justice Vaughan distinguished dicta from those parts of the judgment which form an integral part of it, although he admits that if a judge believes a previous case in another court to be erroneous he is not bound to follow it.2 A hundred years later Blackstone was not able to add very much to this.3 A considerable amount of material from the reporters during this period has been collected, and seems to indicate that although more attention was given to cases, yet the fundamental attitude towards them had not changed. Printing and the later abridgments obviously made it possible to assemble a large number of citations, and so an increase in the number of cases cited is easily explained. Their very number is significant: under a developed system of precedents one case is as good as a dozen if it clearly covers the point, and at the present day citations are consequently few and to the point. The eighteenth century, however, still seems tempted to find safety in numbers, and to regard the function of citations to be merely that of proving a settled policy or practice.
As Sir William Holdsworth has pointed out,4 there were circumstances under which the courts considered themselves free from any obligation to follow precedents. If following them would lead to “inconvenient” results, then it was arguable that the precedents did not represent the true state of the law—a specious argument typical of Coke’s mentality. Another possibility was to blame the reporter for cases one did not like (a device often used by Mansfield, who loved to contrast principle with precedent5 ), while the fact that there were then several common law courts with concurrent jurisdiction enabled some picking and choosing to take place, it being recognised that the decisions of one of these courts did not bind the others.
The growth of precedent in chancery is remarkable for the speed with which it supplanted the original basis of equity. Conscience, ratio, was yielding to cases, exempla, already in the seventeenth century, possibly because chancery was very sensitive to the taunts of common lawyers. The use of cases in chancery therefore resembled closely the practice of the common law courts.6
THE ESTABLISHMENT OF THE STRICT THEORY
While these reservations were possible, the modern strict theory could not be established. It is to the nineteenth century that we must look for the final stages in the erection of the present system.1 We have already noticed how little attention was paid to decisions in the House of Lords.2 That tribunal began to take a prominent part in the elaboration of private law when it undertook to upset the reforming efforts of Lord Mansfield, and it may be suspected that the overruling of some of his most famous judgments did much to attract the attention of legal conservatives to the House.3 But even as late as the days of Baron Parke, less than a hundred years ago, it was possible for that very learned judge to ignore decisions of the House of Lords;4 while Exchequer and Queen’s Bench held different views on the same point as late as 1842.5
The nineteenth century produced the changes which were necessary for the establishment of the rigid and symmetrical theory as it exists to-day. The exclusion of lay lords from judicial functions in the House of Lords, together with the addition of professional lords of appeal in ordinary, left that house a much stronger body than ever before. The organisation of one court of appeal instead of many had a similar result in the middle rank of the hierarchy,6 while the unification of the high court cleared away the possibilities of choice which existed as long as there were uncoordinated courts of King’s Bench, Common Pleas and Exchequer. Even law reporting is now standardised and semi-official.
Nowhere is the difference between the eighteenth century and the nineteenth century attitude more clearly seen than in the treatment of custom. We have already insisted on the flexibility of a living custom, and when Lord Mansfield incorporated the custom of merchants into the common law, it was a living flexible custom, responding to the growth and change of mercantile habits. It is so still, but if perchance a court has given a decision on a point of that custom, it loses for ever its flexibility and is fixed by the rule of precedent at the point where the court touched it.7 The custom of the court itself now undergoes the same sort of change, and the custom of the common law is in some danger of losing its old adaptability. If judicial decision is a source of law, it would not be inappropriate to describe it in this connection as a source pétrifiante.
It was edited and printed as Bracton’s Note Book, ed. Maitland, 1887. Above, p. 260. (See Casus et Judicia (printed in Casus Palcitorum, ed. Dunham, Selden Society, vol. 69) for an attempt to abstract plea-roll cases).
T. E. Lewis, History of Judicial Precedent, Law Quarterly Review, xlvi. 212, suggests that it was.
Above, pp. 260-261.
Sayles, King’s Bench,ii, cviii, iii, xxx.
Numerous examples will be found in Winfield, Chief Sources, 149-152; Allen, Law in the Making, 126-136; and T. E. Lewis, History of Judicial Precedent, Law Quarterly Review, xlvi. 207, 341, xlvii. 411, xlviii. 230. It is not always easy to distinguish citations in the report from subsequent annotations by later readers which have by now become part of the text—or even may have corrupted the text: cf. Y.BB. Edward II (Selden Society), xxiv. lxxxiii ff.
Casus Placitorum (Selden Society), 61.
Y.B. 32 & 33 Edward I (Rolls Series), 32.
Winfield, Chief Sources, 149.
Y.BB. Edward II (Selden Society), xvii. 118; the maxim comes from Cod. 7.45.13.
Y.B. 33 & 35 Edward I (Rolls Series), 6. Note that five years later Bereford adjudged the contrary of Hengham’s “general rule”: Y.BB. Edward II (Selden Society), iii. 91-92.
Y.BB. Edward II (Selden Society), iv. 161. (For the history of which this case was a part, see Plucknett, Legislation of Edward I, 63 ff.) These examples suggest a comparison with the Attiremens et Jugiés d’Eschequiers, ed. Génestal and Tardif (Caen, 1921) of Normandy.
Y.B. 33 Henry VI, Michs. 17, fo. 41.
It resembles much more closely the weighing of authorities in Roman and canon law.
“Lord Mansfield delivered the opinion of the court, having first desired Mr Hussey to state the case for the sake of the students” (R. v. Peters (1758), 1 Burr. 568).
On the citation of decisions in colonial America, see Joseph Henry Smith, Appeals to the Privy Council from the American Plantations, 464 n. 2.
Above, p. 162.
See the passages in Dr Hemmant’s introduction to Select Cases in Exchequer Chamber (Selden Society, vol. 51), xiv, on which this paragraph is largely based. Cf. Y.B. 19 Edward III (Rolls Series), 140.
Y.B. 1 Richard III, Michs. no. 2 (at the end).
2 Inst. 618, Articuli Cleri.
Argument in Calvin’s Case (1608), Works (ed. Spedding), vii. 642.
Slade v. Morley (1602), Yelv. 21.
Godden v. Hales (1686), 11 S.T. 1254.
1 Dyer, 14, 111.
Anon., Dyer, 148 b.
The Case of Mines, Plowd. 310, at 320 (1567).
Walker’s Case (1587), 3 Rep. 23.
Slade’s Case (1596), 4 Rep. 91, contains Coke’s views on the use of cases. For a criticism of the principle in 1649 see Holdsworth, vi. 414.
Bole v. Horton (1670), Vaughan, 360, 382; cf. Edgecomb v. Dee (1670), Vaughan, 89 at 93.
Bl. Commentaries, i. 69-72.
Holdsworth, Case Law, Law Quarterly Review, I. 180-195, reprinted in his Essays in Legal History, 147.
Fifoot, Lord Mansfield, 198-229.
See W. H. D. Winder, Precedent in Equity, Law Quarterly Review, lvii. 245.
Goodhart, Case Law, Law Quarterly Review, l. 196-200; contra, Holdsworth, xii. 146, Law Quarterly Review, l. 180, and Essays in Legal History, 147.
Above, p. 220; cf. below, p. 591 n. 2.
Thus the House of Lords in Rann v. Hughes (1778), 4 Bro. P.C. 27; 7 Term Rep. 350, overruled Mansfield’s view of consideration expressed in Pillans v. Van Mierop (1765), 3 Burr. 1663.
Lord Hanworth, Life of Chief Baron Pollock, 198.
When the Queen’s Bench in Fuller v. Wilson, 3 Q.B. 58, differed from the Exchequer of Pleas in Cornfoot v. Fowke (1840), 6 M. & W. 358, on the fundamental nature of deceit.
It is still possible for the court of appeal to differ from the court of criminal appeal. See Jenks, Short History of English Law (1934), 419, 420.
Cf. Lord Chorley, Conflict of Law and Commerce, Law Quarterly Review, xlviii. 51 at 63.