ascertaining what is the true rule on the particular subject in another and later year. For example, how would it do to cite the decision in the Dred Scott case, which was absolutely sound law at the time it was rendered, in one of the cases arising in the year 1896 between a railway company and the Knights of Labor? We see that it is for the most part idle in discussions of this subject today to cite as authority, or even by way of argument, the decisions of the courts of half a century ago, or of even fifteen or a dozen years ago. What was absolutely right then may be absolutely wrong now.
This notion is well expressed by Lord Watson, in a case decided, only about a year ago, in the House of Lords:
A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal. The course of policy pursued by any country in relation to and for promoting the interests of its commerce must, as time advances and its commerce thrives, undergo change and development from various causes which are altogether independent of the action of its courts. In England at least, it is beyond the jurisdiction of her tribunals to mould and stereotype national policy. Their function, when a case like the present is brought before them, is, in my opinion, not necessarily to accept what was held to be the rule of policy a hundred or a hundred and fifty years ago, but to ascertain, with as near an approach to accuracy as circumstances permit, what is the rule of policy for the then present time.[1]
Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen,
- ↑ Nordenfeldt vs. Maxim-Nordenfeldt Guns and Ammunition Co. (1894), App. Cas., 535. 553. 554.
