Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
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Many other cases might have been inserted here; but they were either such as were plain, or parallel with those already marked; or which did not come up to some precise abstract point in law, but, being involved in circumstances of fact, could not be so easily adduced, and applied to enforce and illustrate other cases, or be rules for the Lords' decisions hereafter; the same cases rarely occurring, invested with the like circumstances, so as to determine the Lords to follow them as practicks for the future. What makes the auctoritas rerum judicatarum more uncertain, and renders the following or receding from prior decisions arbitrary, is the difficulty which judges find of balancing aright, if the diversity of circumstances of the case in hand, from a former decided case, be sufficient in themselves to influence, occasion, or introduce, a diversity or alteration in the determination and decision of the present debate. Or if they be not of that weight, moment, and relevancy, as to cast the balance, and difference the case from the former, or alter the decision; and from this latitude taken by judges, arises the real or seeming contrariety and clashing between several practicks, one with another; the reconciling of which antinomies were a work more tedious than profitable.
