In modern civilization, especially, nothing is so fatal to the
principle of order as inequality in the dispensation of justice, and it
would have been reasonable to suppose that Americans, beyond all others,
would have been alive to this teaching of experience, and have
studiously withdrawn their bench from politics. In fact they have
ignored it, and instead they have set their judiciary at the focus of
conflicting forces. The result has been the more unfortunate as the
English system of jurisprudence is ill calculated to bear the strain, it
being inflexible. In theory the English law moves logically from
precedent to precedent, the judge originating nothing, only elaborating
ideas which he has received from a predecessor, and which are binding on
him. If the line of precedents leads to wrongful conclusions, the
legislature must intervene with a statute rectifying the wrong. The
Romans, who were gifted with a higher legal genius than we, managed
better. The praetor, by his edict, suppressed inconvenient precedents,
and hence the Romans maintained flexibility in their municipal law
without falling into confusion.
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