An Essay on Professional Ethics: Second EditionSharswood, George
Philosophy
An Essay on Professional Ethics: Second Edition
Sharswood, George
Legal ethics -- United States
As well in the domain of public as of private law, the great fundamental
principle for judge and counsellor ought to be, THAT AUTHORITY IS
SACRED. There is no inconvenience so great, no private hardship so
imperative, as to justify the application of a different rule to the
resolution of a case, than the existing state of the law will warrant.
"There is not a line from his pen," says Mr. Binney of Chief Justice
Tilghman, "that trifles with the sacred deposit in his hands by claiming
to fashion it according to a private opinion of what it ought to be.
Judicial legislation he abhorred, I should rather say, _dreaded_, as an
implication of his conscience. His first inquiry in every case was of
the oracles of the law for their response; and when he obtained it,
notwithstanding his clear perception of the justice of the cause, and
his intense desire to reach it, if it was not the justice of the law, he
dared not to administer it. He acted upon the sentiment of Lord Bacon,
that it is the foulest injustice to remove landmarks, and that to
corrupt the law is to poison the very fountains of justice. With a
consciousness that to the errors of the science there are some limits,
but none 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.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account