332 HARVARD LAW REVIEW. very few indeed require a ruling upon that question by the judges themselves. Decisions without precedent and decisions by which prior cases are overruled are common instances .of the larger class. The former, it is quite plain, cannot present the question of judicial legislation for decision ; but in cases which fall under prior rulings of the court the distinction is not so clear, and has been frequently ignored. In the great majority of cases the record discloses a state of facts covered by a prior decision, upon which one of the parties relies. To follow that decision involves no opinion whatever upon the nature of that decision as respects the question of judicial legislation. That question must in any case be subsidiary to the inquiry, What is the law governing the facts before the court? and that inquiry, as regards the law of the jurisdiction, is closed by the prior decision invoked. The determination of whether or not that decision made the law announced by it, can have no bearing on the case at bar. And so, if the decision is overruled and the law to be applied in similar cases is changed. This is, according to the now commonly received opinion, a very satisfactory example of legis- lation by judges ; but there is no possible occasion for the court to declare itself on the matter. Whether the court is changing the law, or merely correcting an erroneous declaration of it, cannot in any way affect the judgment to be rendered. Thus, if the question should be raised in the New York Court of Appeals whether a legatee by murdering a testator had invalidated a bequest to him in the will, the court would be bound by Riggs v. Palmer ■• to decide that he had. That decision pronounced the law which, unless it is squarely overruled, must govern all subsequent cases involving the same facts. The decision of the case at bar cannot be affected by the question, whether the effect of that case was not the embodiment of an exception in the local statute of wills or an amendment of the provisions of the Penal Code pre- scribing the punishment for murder. Neither to affirm it nor to overrule it indicates any opinion upon that question. The decision of a case overruling Riggs v. Palmer is entirely consistent with either one of two opinions: (i) that Riggs v. Palmer never was the law, that is, that the decision of that case did not embody the rule it announced in the law of the state; or, (2) that the law created by that decision is a bad law and shall be changed retro- 1 IIS N. Y. 506.
