第25章

When so much else that a court does is done with retroactive force, why draw the line here? The answer is, I think, that the line is drawn here, because the injustice and oppression of a refusal to draw it would be so great as to be intolerable.We will not help out the man who has trusted to the judgment of some inferior court.5 In his case, the chance of miscalculation is felt to be a fair risk of the game of life, not different in degree from the risk of any other misconception of right or duty.He knows that be has taken a chance, which caution often might have avoided.The judgment of a court of final appeal is felt to stand upon a different basis.I am not sure that any adequate distinction is to be drawn between a change of ruling in respect of the validity of a statute and a change of ruling in respect of the meaning or operation of a statute, 6 or even in respect of the meaning or operation of a rule of common law.7 Where the line of division will some day be located, I will make no attempt to say.I feel assured, however, that its location, wherever it shall be, will be governed, not by metaphysical conceptions of the nature of judge-made law, nor by the fetich of some implacable tenet, such as that of the division of governmental powers, 8 but by considerations of convenience, of utility, and of the deepest sentiments of justice.

In these days, there is a good deal of discussion whether the rule of adherence to precedent ought to be abandoned altogether.9 I would not go so far myself.I think adherence to precedent should be the rule and not the exception.I have already had occasion to dwell upon some of the considerations that sustain it.To these I may add that the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.Perhaps the constitution of my own court has tended to accentuate this belief.We have had ten judges, of whom only seven sit at a time.It happens again and again, where the question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time.

The situation would, however, be intolerable if the weekly changes in the composition of the court were accompanied by changes in its rulings.In such circumstances there is nothing to do except to stand by the errors of our brethren of the week before, whether we relish them or not.But I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed.I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.We have had to do this sometimes in the field of constitutional law.10 Perhaps we should do so oftener in fields of private law where considerations of social utility are not so aggressive and insistent.There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years.In such circumstances, the words of Wheeler, J., in Dwy v.Connecticut Co., 89 Conn.74, 99, express the tone and temper in which problems should be met: "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule.It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life.It is not and it should not be stationary.Change of this character should not be left to the legislature." If judges have wofully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.

Let me offer one or two examples to make my meaning plainer.I offer them tentatively and without assurance that they are apt.They will be helpful none the less.The instance may be rejected, but the principle abides.

It is a rule of the common law that a surety is discharged from liability if the time of payment is extended by contract between the principal debtor and the creditor without the surety's consent.Even an extension for a single day will be sufficient to bring about that result.11 Without such an extension, the surety would have the privilege upon the maturity of the debt of making payment to the creditor, and demanding immediate subrogation to the latter's remedies against the principal.He must, therefore, it is said, be deemed to have suffered prejudice if, by extension of the due date, the right has been postponed.I have no doubt that this rule may justly be applied whenever the surety can show that the extension has resulted in actual damage, as where the principal in the interval has become insolvent, or the value of the security has been impaired, though even in such circumstances the measure of exoneration ought in justice to be determined by the extent of the damage suffered.Perhaps there might be justice in permitting exoneration whenever the surety had tendered payment of the debt, and demanded subrogation to the remedies against the debtor.Perhaps the burden of disproving prejudice ought to be cast upon the creditor.No such limitations have been recognized.