security. The public might awake and find themselves martyrs to the pretensions of one, whose superiority of wisdom they could not be expected to admit, and might successfully dispute.

Where precedents are not deemed binding.-Hence it is, that as between courts of co-ordinate authority and jurisdiction the decision of one will be acted upon by another without criticising the reasons. The proper mode of correcting these is by appeal to a higher court, and if that is neglected, or if the court of appeal confirm the decision, the matter is taken to be settled, and as nearly fixed and irrevocable as anything human can be. The reluctance to go behind such a settlement and reopen the controversy grows with time, and assumes too often that mechanical copying of what has been once held for right, which at first sight is so incomprehensible to strangers. And yet though it must be admitted, that the reproach so often cast upon the legal profession of blind adherence to precedent rests upon no sound foundation, and proceeds from mere want of thought, there were always a few exceptions and qualifications even to that general rule which tended to obviate some of its grosser inconveniences. Until the Judicature Act put all the superior courts on one level, if as between two courts of co-ordinate jurisdiction there had been a recent decision by one court which another could not conscientiously assent to, a practice had crept in for each court to follow its own independent judgment, more especially if there was no means of questioning by an appeal the prior decision. Moreover, if the point was one rather of discretion and practice than of principle, one court felt itself at liberty to disregard its predecessor's conclusion when exercising the same latitude. And it occasionally happened that a court was so strongly persuaded of the injustice, inexpediency, and shortsightedness of a long-established rule as to overrule and reverse it; but this was only done when no hardship would thereby be created to any interest, and the change of practice would not operate unjustly. The extent to which precedents should bind a court is indeed subject to so many nice qualifications arising out of the subject-matter, the time, and the occasion, that it is scarcely possible to define it except by saying that prima facie it is the duty of all courts to follow a precedent unless there is some over

whelming reason against it; and this habit is all the more salutary when there is a legislature at hand easily accessible and ready to redress all kinds of injustice, whenever such a course becomes by change of circumstances or otherwise likely to work oppression. By this discharge of its duty the affected attributes of omniscience and infallibility, sometimes ironically imputed to the law, cease to keep alive for any length of time any flagrant injustice or obsolete dogma.1

Adherence to precedents assumes means of knowledge of the law. While, therefore, adherence to precedents is not only justifiable in the courts, but salutary to the public, much of this justification and safety depends on the extent to which the precedent had become known and acted upon. If the existence of the precedent had been concealed and inaccessible to the public, or, what is the same thing, to the advisers of the public, the reason of blindly following it loses most of its force and of its merit.. There is, and can be, no abstract merit in following any precedent as a precedent; it is on the assumption that the precedent had been acted upon, that men's conduct had been regulated by it, and men's titles reposed upon it, that all its virtue depended. But when the precedent lay hid in the forgotten files of the court, and the knowledge of it had never been diffused among the public or

1 BACON says we should avoid such precedents as smack of the times.

VAUGHAN, C. J., in his reports, says that "in cases which depend on fundamental principles, from which demonstrations may be drawn, millions of precedents are to no purpose."-Re Wales, Vaugh. 419.

LORD MANSFIELD, C. J., said "when an error is established and has taken root, upon which any rule of property depends, it ought to be adhered to by the judges, until the legislature thinks proper to alter it, lest the new deterniination should have a retrospect and shake many questions already settled; but the reforming erroneous points of practice could have no such bad consequences, and therefore might be altered at pleasure when found to be absurd, and incon venient."-Robinson v Bland, 1 W. Bl. 234.

BLACKSTONE says precedents must be followed, unless contradictory to reason or the divine law.—1 Bl. Com. 69.

ELLENBOROUGH, C. J., said: "God forbid that when conscience points one way, I should follow precedent the other."-23 Parl. Deb. 1084.

DE THOU was in the habit of saying that precedents were good only for "the individual plaintiff or defendant.”—1 Bac. Works, 808 n.

the advisers of the public, then little can be urged in its. favour, and it must be left to be dealt with by the ridicule of cultivated minds, who owe no allegiance to the law and its methods. It would be better in that view that the judges and courts should at once invent and decide for the occasion, and follow their untutored reason. If to the public all is guesswork—if the legislature or the government take no pains to diffuse some knowledge of the law, or to see that some knowledge of it reaches the public-it can be of very little consequence to the latter whether in searching for a conclusion the courts legislate or expound. The courts may just as well act upon reasons that will be acceptable to the present generation as to the past. The defence of precedents is thus bound up with the consideration how far the government acquits itself of the duty of spreading a knowledge of the laws among the people whom those laws solely concern, and this more properly belongs to another and later head, namely, that of codification.

Presumption that every one knows the law. It is one of the radical conditions underlying the existence and administration of all laws, that every citizen is presumed to know enough of the law so as not to set up his ignorance as any excuse for his violation of its rules. The maxim is ignorantia juris neminem excusat. The meaning of this maxim has often been hastily assumed to be, that every person is presumed affirmatively to know what the law is on any particular subject that may arise; and hence it is often explained to be a somewhat harsh assumption, if not a palpable historical fiction, inasmuch as every one's daily experience proves that few persons know the whole of the law, or are ever likely to do so; and that beyond those few, very few indeed know with any reasonable certainty more than a part of the entire law. Yet the law must be administered on the principle that every one must be taken conclusively to know it, without proof that he does know it.1

It has sometimes been put forward as a reason in defence of this maxim, which to laymen seems somewhat in need of justification, that all are presumed to know the law, because they were present through their representatives in. parliament when such law was passed. Such a reason,

1 Per Tindal, C. J., MacNaughton's Case, 10 Cl. & F. 210.

however, could only apply to a small portion of the law, for in any one generation it is but a small portion of the law that is declared by the legislature. And, apart from this, the mere fact of the representatives passing a law does not necessarily imply any knowledge in the constituents of the details of such law; it can only excuse those who passed it and prevent the principals from complaining of the acts of their agents.1

Reason of this maxim.-The real meaning of the maxim is not that every person is presumed to know the law, but merely that, in any case of alleged violation of the law, no person shall be heard to set up the excuse, that he was ignorant that any conduct of his was in violation of the law. And this maxim so understood is essential to the due administration of all laws. It is founded on necessity, and like some of the elementary truths of mathematical science, must be assumed, not because of any positive reason which can be rendered, but rather because of the negative reason, namely, that there is no reason why it should not be so.

If it were once allowed in answer to any complaint of violation of the law to set up the defence of ignorance, then there must be gradations of ignorance and gradations of default, and a preliminary inquiry in each case as to whether such ignorance was real or assumed, culpable or innocent. One would be entitled to urge that he had never received any education at all; another, that he was about to study the law, but had not yet advanced sufficiently; a third, that he had made an effort to learn, but could find no sufficient teachers; a fourth,

1 It was said so far back as the time of Edward I., that the reason why no one should excuse himself for ignorance of the law was, because every person was represented in parliament.---Year-Book, 39 Edward I., T. Pasch.

HOBBES insinuated that it was not apparent why every man should be bound to buy the Book of Statutes, or search at the Tower, or understand the language in which they were written.-Hobbes's Dial. p. 599 (ed. 1750).

HOOKER said it was against equity, that one should suffer from a law which he had never by himself or others mediately or immediately agreed to.-Eccl. Pol. But HALLAM said this doctrine in its literal sense is incompatible with the existence of society.--1 Hallam, Const. H. 222.

that he had to get his living, or had no sufficient means, and so had no leisure; a fifth, that he had applied to the wisest person within his reach, and had been misled by the information he received; and a sixth, that he had made careful inquiry, and found the highest authorities equally wise and weighty on both sides, and was unable to decide which should be his guide. It might be asked, if such inquiries were permitted, what materials exist to enable any court satisfactorily to dispose of them. The interior of a man's mind is beyond the reach of inquiry. To endeavour to discover the secret springs of thought-the degree of reflection given to any one subject-the elements of self-education, or the impulse given to the mind by the common knowledge provided by the schools-with what possible certainty can any third party attempt to solve so inscrutable a problem? Hence the courts wisely abandon the impossible task, and treat all alike as incompetent to set up any such defence, leaving each to find out for himself and in his own way whatever he wants, and to take the risk of his want of knowledge as it may turn out.1

But though no one is allowed in any legal proceeding to set up his own ignorance of law as an excuse, it is very different, where an error of fact is involved, and lies at the root of the supposed violation of law. An error of fact may entirely vitiate an agreement between two parties and prevent that which was supposed to be an agreement from having any binding effect. The effect of a mistake of fact is indeed difficult to be stated, apart from the various situations in which one's rights and wrongs arise. It is enough here to say, that while a mere mistake of law generally forms no ingredient in the remedy of civil courts, and often small even in criminal courts, yet a mistake of fact may be so mixed up with the foundation and administration of

1 This theory, however, was departed from in a case where a man, in a ship on the coast of Africa, did an act, on June 27, for which he could not have been punished except under an Act of Parliament which had passed on the previous May 10, but the knowledge of which statute could not have reached him at that remote place. The judges concurred, that it would be unjust to punish him, though technically he was guilty, and recommended a pardon to be obtained. -Bailey's Case, R. & Ry. 1. An exception to the rule, that ignorance of the law is no excuse, exists in the case of a judge who, mistaking the law, inflicts injustice on another.-R. v Picton, 30 St. Tr. 831, 914.