But these considerations only lead to [126] the
conclusion that precedents should be overruled when they become
inconsistent with present conditions; and this has generally
happened, except with regard to the construction of deeds and
wills. On the other hand, it is very desirable to know as nearly
as we can the standard by which we shall be judged at a given
moment, and, moreover, the standards for a very large part of
human conduct do not vary from century to century.
The considerations urged in this Lecture are of peculiar
importance in this country, or at least in States where the law
is as it stands in Massachusetts. In England, the judges at nisi
prius express their opinions freely on the value and weight of
the evidence, and the judges in banc, by consent of parties,
constantly draw inferences of fact. Hence nice distinctions as to
the province of court and jury are not of the first necessity.
But when judges are forbidden by statute to charge the jury with
respect to matters of fact, and when the court in banc will never
hear a case calling for inferences of fact, it becomes of vital
importance to understand that, when standards of conduct are left
to the jury, it is a temporary surrender of a judicial function
which may be resumed at any moment in any case when the court
feels competent to do so.
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