34 HARVARD LAW REVIEW. Jordan (and one specimen will do for all) says : " The lower courts act in accordance with the will of the Legislature, if they follow the clear usage of the higher courts, although they are not bound to do so absolutely, but are only held to such following so far as they find it grounded in the will of the Legislature according to their own examination, from which they are never excused." Archiv. f. civ. Prax. 246, 247. Savigny, § 20, with a vagueness not common to him, says that when the lower courts conform to the jurisprudence of the higher
- they do not yield to authority, but enter into the spirit of the
legislator, whose wisdom has established the different degrees of jurisdiction." ^ Scotch Law. — The position assigned to judicial precedents in Scotland seems to be intermediate between that occupied by them on the continent of Europe and that to which they are raised in England. Erskine in his Institutes, Book L tit. i, § 47 (1768), says: " An uniform series of decisions of the Court of Session, i. e,^ of their judgments on particular points, either of right or of form, brought before them by litigants, and anciently called Practics, is by Mackenzie accounted part of our customary law. Thus far may be admitted. First, that their more ancient decisions, from which it appears that any particluar usage had then acquired the force of law, may be properly brought in proof of that custom, if it have not afterwards lost its authority by an immemorial and uni- versal usage to the contrary ; and secondly, that great weight is to be laid on their later decisions, where they continue for a reason- able time uniform, upon points that appear doubtful. L. 38, de legib. But they have no proper authority in similar cases, because the tacit consent on which unwritten law is founded cannot be inferred from the judicial proceedings of any court of law, however distinguished by dignity or character; and judgments ought not to be pronounced by examples or precedents. L. 13, C. de sent, et int. Decisions, therefore, though they bind the parties litigat- ing, create no obligation on the judges to follow in the same tract, if it shall appear to them contrary to law. It is, however, certain that they are frequently the occasion of establishing usages, which, after they have gathered force by a sufficient length of time, must, 1 In France it would seem, as in Germany, judicial decisions are not binding prece- dents, even in inferior courts.
