Did you know that the first volume of the United States Reports prepared by Alexander James Dallas, Esq., contains cases decided by Pennsylvania=s Supreme Court, the Court of Oyer and Terminer at Philadelphia, Common Pleas at Philadelphia County, the Supreme Executive Council of Pennsylvania, the High Court of Errors and Appeals of Pennsylvania and not a single decision of a United States court? That good fortune enables us to examine the original use of precedent in Pennsylvania courts free from dust and mold. On the third page of that volume appears the 1760 Stevenson case in which the question was raised before Pennsylvania=s high court, comprised of three justices, whether certain rum belonged to Pemberton, as satisfaction of a debt, or to Stevenson, an attaching creditor of the rum=s original owner. Stevenson=s lawyer cited five British precedents in support of his claim and Pemberton=s counsel responded with ten of his own. In the next reported case, Ashton, the high court cites twelve English precedents to justify its ruling on a will that Athe first son of I.S. should take.@

One is not surprised to see the Pennsylvania courts applying England=s common law precedents as law; the state=s first judges were, after all, trained in the common law and were sitting in a colony of the Crown. Looking back, more than two centuries later, one is surprised by the totalitarianism of precedent. The judge=s job seems totally controlled by judicial precedent; read the precedents, reconcile any inconsistencies, declare the rule which emerges, and apply it to the facts. In these early days the Supreme Court justices delivered their opinions seriatim, in the British style. Some quotations will quickly reveal their deep loyalty to judicial precedent.

The doctrine of stare decisis is, indeed, one of the most important in the law; for in its simplicity it expresses man=s reverence for civil authority, and the demand of his nature that it shall be obeyed--and this feeling is the surest foundation of social order. It is the expression of the people=s expectation that all government shall be administered with great care and with a reasonable degree of consistency, and of their confidence that it is so; and it involves the injunction that official functionaries shall not for light reasons abandon the expressed judgments of themselves or of their predecessors, especially if any

The judges authoring the above quotes proceeded under the Adeclaratory@ theory of law. This judicial mind set presumed that law pre-existed the current questions raised in court, law to be found primarily within the considerable body of English court precedents which had been accumulating for centuries. The judicial task was not to create law, but merely to ascertain the correct rule from the body of decisional law and apply it to the case facts before it. Law was not Amade@ in this process, but merely Adeclared.@ The thought was, apparently (and strangely to our modern legal minds), that the English common law judges had created a full and complete body of judicial precedent; thus, their successors, the 18th and 19th century judges, had the easier task of identifying the Acorrect@ rule in the mass of British precedents and applying it. The current decision did not make new law--a proposition which today=s legal thinkers quickly refute--but simply was Aevidence@ of pre-existing law.

Did the colonial and post-Revolution judges believe themselves empowered to discard Abad@ precedent? The author of the first and last quoted words above, Chief Justice McKean, not a maverick and surely a devotee of judicial precedent, thought so in Kerlin=s Lessee where he stated:

Besides establishing an overruling power, this statement helps us understand a crucial facet of the Adeclaratory theory@ of law. Judges in that era were quite willing to discard precedents not because they created socially undesirable rules but because they Adeclared@ the wrong rule. Courts would reread the English precedents, find different rules there, and overrule their own misdeclarations.

Willing v. Rowland held that a statute had changed the common law rule by vesting title to proceeds of auctioned goods in a public auctioneer rather than the principal. Confronted with this precedent in 1818, in Girard, three justices readily discarded it. It was issued A[without] much argument@ and in Athe hurry of a jury trial@ (Pennsylvania=s Supreme Court tried cases!). It had not passed into a Arule of property@ by being applied in later cases-- AHad that been the case, my mouth should never have been opened in opposition to it.@ Willing was a Ahasty opinion...delivered while a jury were waiting at the [non-alcoholic] bar...@ Thus American grounds for overruling begin to form: hastily considered precedents; those uninformed by lawyers= arguments; and those unutilized in later years.

Rules which have lost their social utility (assuming they had such) are ripe for overruling.