ns; they were unable to do so, but in making the attempt
they involved the American judicial system in a maze of difficulties
whose gravity, I fear, can hardly be exaggerated. Before entering upon
this history, however, I must say a word touching the nature of our law.

Municipal law, to be satisfactory, should be a body of abstract
principles capable of being applied impartially to all relevant facts,
just as Marshall and Jay held it to be. Where exceptions begin, equality
before the law ends, as I have tried to show by the story of King David
and Uriah, and therefore the great effort of civilization has been to
remove judges from the possibility of being subjected to a temptation,
or to a pressure, which may deflect them from impartiality as between
suitors. 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studiously withdrawn their bench from politics.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. We have nothing to correspond to the
praetor.

Thus the English system of binding precedents is troublesome enough in a
civilization in chronic and violent flux like modern civilization, even
when applied to ordinary municipal law which may be changed at will by
legislation, but it brings society almost to a stand when applied to the
most vital functions of government, with no means at hand to obtain a
corrective. For the court of last resort having once declared the
meaning of a clause of the Constitution, that meaning remains fixed
forever, unless the c