THE DOCTRINE OF STARE DECISIS 



BY EDWARD B. WHITNEY 



[Edward B. Whitney, Lawyer, New York. b. New Haven, Connecticut, August 

 16, 1857. A.B. Yale University, 1878. Assistant Attorney-General of the 

 United States, 1893-97. Author of many contributions to reviews; and 

 has addressed associations on legal and particularly constitutional questions.] 



I AM requested to present a paper whose theme is suggested by 

 the Present Problems of Private Law, as distinguished from law 

 that has a constitutional or international aspect. I doubt whether 

 there is any other section of the Congress whose themes are so 

 difficult to select. We cover, indeed, those branches that mainly 

 concern the ordinary, plain, steady-going, stay-at-home, law-abiding 

 citizen, that multitude of questions among which most legal prac- 

 titioners everywhere are wearing out their lives, working every day 

 and all day upon Present Problems of Private Law. Each of those 

 problems interests the parties to the particular litigation or negotia- 

 tion or dispute or difficulty which brings it up. Some interest even 

 the lawyers to whom they are presented. Few interest anybody 

 else; and even among these few but a small minority possess such 

 world-wide interest that they are worthy of the consideration of a 

 Congress representing all the civilized nations of the globe. 



Furthermore, this is not an International Congress of Lawyers. 

 There is such a Congress; but it is a different one, and does not meet 

 until next week. This is a Congress of Arts and Science ; and of 

 all the Present Problems of Private Law none is so difficult as to 

 give to any portion of private law, as known at least to the Ameri- 

 can practitioner, the semblance either of a science or of an art. 



Science, as I understand it, is a search after absolute truth, 1 after 

 something which when once ascertained is of equal interest to all 

 thinkers of all nations. No matter how wise and learned and famous 

 a person may have said that a thing is so in the realm of science, it 

 remains open to anybody to prove that it is not so; and if it is 

 proved to be not so, the authority of the wise and learned and famous 

 person disappears like a morning mist. In science, what we are really 

 .seeking is not the opinion or the command of any human being. 

 We are subject to no command, and are not bound to follow any 

 previously expressed opinion. But when a lawyer is trying to find 

 out what is the law upon any particular point, in order to advise his 

 client, he first inquires whether a collection of men exercising legis- 

 lative functions and having jurisdiction in the premises have com- 

 manded anything upon the subject; and if they have, he has nothing 

 to do but to interpret, if he can, the usually vague and unscientific 



