270 



decisions, being precedents for future cases, are, in their essential 

 nature, laws differing in nothing from statutes, except in the mode of 

 expression ; (A) and hence, that the law is a mere expression of the 

 will of the State, consisting exclusively of laws or statutes, enacted 

 either by the ordinary legislature or the judges ; but this proposition 

 is manifestly untenable ; and, as fortunate!}^ the subject will be more 

 or less familiar to the reader, it will tlierefore be sufficient on these 

 points to observe that the proposition is opposed to the uniform opinion 

 of the jurists, both of our own and of the Roman law, as embodied in 

 the maxim, Judicis est jus dicere, non dare ; and that it is in conflict with 

 the rule of stare deeisin, as uniformlj^ interpreted by the authorities of 

 either law. (i) The eliect of judicial decisions, so far as they are bind- 

 ing in the courts, is simply tliat accorded to custom generally. If they 

 have entered into the life and mode of business of the people, or, in 

 other words, have become part of their general customs, they must in 

 general be observed ; and hence the validity of precedents rests upon 

 precisely tlie same grounds as does that of customs, which are to be 

 observed only when it is reasonable or just that they should be. 



Beyond this — on the principle, " Cuilibet in sua arte perito" — judicial 

 decisions and the opinions of jurists carry with them, as do those of 

 experts in all branches of knowledge, a certain autliority ; but in the 

 law, as elsewhere, authority is to be regarded as a mere aid in arriving 

 at truth, and can in no case be Iield conclusive. Naturally, every judge 

 will avail himself of the labors of other judges when questions investi- 

 gated by them come before him ; and he is bound to give their views a 

 respectful consideration ; but the weight of the authority will vary in 

 all cases, according to the learning and ability of its author, and the 

 cogency of his reasoning ; and in all cases, except where the decision 

 has passed into custom and become an accepted canon of property and 

 conduct, the judge is bound to reject it, if, in his opinion, it is clearly 

 erroneous. 



§ 36. Of the Administrative Function. 



With regard to the administrative function, its nature, and the various 

 modes of its operation, the subject is too extensive to be entered at 

 length upon here. It is sufficiently defined, however, as including all 

 the functions of government that do not properly belong to the judicial 

 function ; that is, either to the function of ordinary or to that of legis- 

 lative jurisdiction ; and it is to be subdivided into the legislative and 

 the governmental functions. As to the precise division between these 

 it must be determined by practical considerations, as there is, or at least 

 I know of no principle by which they can be sharply distinguished. 

 The subject, therefore, will belong more properly to the subject of 

 political organization. 



