INTRODUCTION 
 
 TO THE 
 
 STUDY OF LAW 
 
 BY 
 
 EDWIN H. WOODRUFF 
 
 PROFESSOR OF LAW IN CORNELL UNIVERSITY 
 COLLEGE OF LAW 
 
 NEW YORK 
 BAKER. VOORHIS & COMPANY
 
 COPYRIGHT, 1890 
 BY 
 
 Edwin H. Woodruff 
 
 T
 
 
 CONTENTS. 
 
 I. The Scope ok Law i 
 
 II. How AND Where to Find the Law . . 8 
 
 III. The Operation of Law 27 
 
 IV. Courts and Procedure 75 
 
 Appendix 81 
 
 7365:1.8
 
 PREFACE. 
 
 The follovving- pages are the result of a de- 
 sire on the part of the writer to bring together 
 in concise form such information as he has felt 
 would be of particular assistance to students 
 just entering upon the study of law. The 
 student during his earlier efforts seems to have 
 some difficulty in learning where and how to 
 find the law, and to have much greater diffi- 
 culty in attaining and keeping the legal point 
 of view. 
 
 It appears feasible to give the beginner sub- 
 stantial aid at this juncture, by placing before 
 him as simply and concretely as possible cer- 
 tain facts about law books and about the scope 
 and workings of law, which may prove of tem- 
 .porary convenience to him until he has ad- 
 vanced far enough to be able to use the law 
 library with a fair degree of facility, and has 
 become by experience somewhat familiar with 
 the methods of dealing with legal material. 
 
 College of Law, Cornell University. 
 March, 1898.
 
 INTRODUCTION TO THE 
 STUDY OF LAW. 
 
 I. 
 
 THE SCOPE OF LAW. 
 
 Popular Notions of Law. — In the popular 
 mind law is commonly thought of as that 
 which determines what a man may not do, and 
 this idea is evident in such familiar expres- 
 sions as, " It is against the law," or " Greater 
 than the law allows." Law — this barrier 
 that prevents a man doing just as he likes — is 
 associated with policemen, or with a subpoena 
 to serve as a witness, with suing or being sued, 
 with being called to sit as a juror, or is brought 
 to mind as being the profession of judges and 
 lawyers, who always constitute so interesting 
 and conspicuous a part of every community. 
 
 Definitions of Law. — Going behind these 
 popular notions that indicate the presence of 
 law, and attempting to discover the actual 
 basis for them, and what the meaning of law 
 really is, we find certain fundamental facts.
 
 2 Introduction to Law. 
 
 Now, these facts may not supply us with an 
 absolutely precise definition of law — a defini- 
 tion that will be universally acceptable, but 
 they will lead us to a plain working statement 
 which may serve as a starting-point. 
 In every civilized community we find : 
 
 1. Rules by which men are expected to order 
 their conduct. 
 
 2. That some of these rules of conduct 
 which the community expects a man to ob- 
 serve in his relations with his fellowmen may 
 be followed or not, just as the individual may 
 choose. If he does not observe them, he will, 
 perhaps, experience contempt, criticism, neg- 
 lect, or loss, from disregarding the customs 
 of the community or some class of it ; or, on 
 the other hand, he may find personal pleas- 
 ure in disregarding these customs. 
 
 3. That there are, however, some rules of 
 conduct of which the state will compel the 
 observance. 
 
 4. That the state has provided public courts 
 of justice, to apply those rules of which the 
 state compels the observance. 
 
 5. That the state has also provided means 
 for putting in force the judgments and orders 
 of the courts of justice. 
 
 1" rom these facts wc may say that : 
 " The law may he take)i for every purpose, 
 save that of strietly philosophieal inquiry, to be
 
 The Scope of Law. 3 
 
 the sum of rules administej'cd by courts of jus- 
 tice.'' ' 
 
 Various definitions have been framed as the 
 result of attempts at a " philosophical in- 
 quiry ;" for example, " A rule of civil conduct 
 prescribed by the supreme power in a state, 
 commanding what is right and prohibiting 
 what is wrong," "^ a definition which with the 
 omission of " commanding what is right and 
 prohibiting what is wrong" is adopted by 
 Kent ; ' and " A general rule of external hu- 
 man action, enforced by a sovereign political 
 authority."* These definitions refer only to 
 what is called Municipal law as distinguished 
 from what is called International law. Munic- 
 ipal laiu regulates the intercourse of a state 
 with its subjects and of those subjects with 
 one another ; while International laiv is made 
 up of " those rules of conduct in accordance 
 with which, either in consequence of their ex- 
 press consent or in pursuance of the usage of 
 the civilized world, nations are expected to 
 act." ^ It has been and is contended that 
 International law is not law, for in a dispute 
 
 ' Pollock and Maitland, History of English Law, vol. 
 i., p. XXV. 
 ' Blackstone, Commentaries, Book I., p. 44. 
 ' Comjnentaries, vol. i., p. 447. 
 
 * HoWand, /urisj/riidence, 5th ed., p. 37. 
 
 * Id., p. 115.
 
 4 Introduction to Law. 
 
 between two nations, each is equally judge of 
 its own cause, and there is no power to compel 
 the observance of the rules other than the 
 power of public opinion.' But even if Inter- 
 national law does not possess all of the char- 
 acteristics of true law, the term is, neverthe- 
 less, generally accepted for convenience, and 
 with less question, perhaps, because Inter- 
 national law seems on the way to become 
 still more like true law/ 
 
 Law and Morality. — There are, as was said 
 above, some rules of conduct that courts do 
 not apply, and they are, therefore, not law. 
 And this statement includes many rules that 
 are esteemed to be rules of right conduct as 
 between man and man. In some cases this is 
 because the subject is thought to be too deli- 
 cate to admit of effective action by the courts. 
 For example, where one person is injured by 
 the negligence of another, and the person who 
 was injured has himself contributed to the injury 
 by negligent acts or omissions of his own, he 
 cannot recover damages. " The law has no- 
 scales to determine, in such cases, whose 
 wrongdoing weighed most in the compound 
 that occasioned the mischief," " 
 
 In other cases the reason is that a rule of 
 
 ' WoWand, Jurisprudence, 5th ed., p. 115. 
 
 " See Pollock, Essays in Jurisprtidence, pp. 35-38. 
 
 ' Railroad \. Norton, 24 Penn. State Reports, 469.
 
 The Scope of Lazv. 5 
 
 morality which would be applied by public 
 opinion to the circumstances of some particu- 
 lar case is in conflict with some general rule of 
 law that is applied by courts in all cases of 
 that kind. To illustrate : The law allows gen- 
 eral business competition, even if at times 
 such competition results in particular hardship, 
 and in some special instance is regarded by men 
 as being morally wrong. Such would be the 
 case if a wealthy man, having the choice of 
 two sites equally good, should, with indiffer- 
 ence to the welfare of a poor widow, estab- 
 lish a business next door to hers, and by un- 
 derselling ruin her financially. The moral rule 
 that public sentiment applies here does not 
 accord with the general rule that courts apply ; 
 but it is of more importance that a rule of law 
 should be general in its operation than that it 
 should yield to every occasional case of par- 
 ticular moral wrong. In brief, for these rea- 
 sons it is believed, on the whole, that it is 
 either necessary, or wiser and more expedient, 
 for some matters to be left to the conscience 
 of the parties concerned ; and that the general 
 welfare of society is served better in this way 
 than by attempting to interpose the law to 
 adjust every possible case of wrongdoing. 
 
 Operating in this manner, the law not only 
 leaves untouched many cases of moral blame, 
 but in some matters soes to the extent of
 
 6 Introduction to Law. 
 
 compelling one to pay damages when he is 
 not only free from moral blame, but has ac- 
 tually exercised the highest degree of care in 
 his conduct. For example, the law deems that 
 public policy requires a master to be held liable 
 for a wilful wrong committed by his servant, 
 when the act is within the apparent scope of 
 the servant's authority and done in the master's 
 interest ; and this is so even if the master has 
 specifically directed his servant not to do the 
 particular act which caused the injury. So in 
 a case where the driver of A. 's omnibus, acting 
 in the supposed interest of A., wilfully ob- 
 structed the omnibus of B., a rival, and in the 
 attempt to get ahead of it, upset it, B, could 
 recover damages from A., even though A. had 
 previously instructed his driver not to race 
 with or obstruct other omnibuses.' 
 
 But it must be remembered that although 
 the law does not, for these reasons, reach the 
 actual moral blame in all possible cases of 
 wrongdoing, the rules that are applied by 
 courts do, nevertheless, reflect generally the 
 moral ideas of the time when, and the place 
 where, these rules of law exist. Ideas of what 
 is right and wrong are not the same at every 
 period nor among all nations. At one time 
 and in some country it may be thought right 
 
 ' Limpus V. The Omtt/dus Co., i Hurlstone and Colt- 
 man's English Exchequer Reports, 526.
 
 The Scope of Lazv. 7 
 
 that slavery should exist, or that the eldest 
 son should inherit his ancestor's estate, to the 
 exclusion of the younger sons ; but when, with 
 the growth of civilization, these ideas change, 
 the law will be found to accommodate itself to 
 the altered conditions. " Social necessities 
 and social opinion are always more or less in 
 advance of law. We may come indefinitely 
 near to the closing of the gap between them, 
 but it has a perpetual tendency to reopen. 
 Law is stable ; the societies we are speaking 
 of are progressive. The greater or less happi- 
 ness of a people depends upon the degree of 
 promptitude with which the gulf is narrowed. ' ' ' 
 While law is thus a response to the moral 
 sense of the people, it has, moreover, a moral 
 power of its own which it exerts upon every 
 individual. "It is the constant and visible 
 representative of an universal interest outside 
 the individual interest of each man and house- 
 hold. ... It is well for all men, in the course 
 of perfecting their moral nature, to have ever 
 at hand a grand, visible, and practical witness 
 to the claims of their brother-men, to the sub- 
 ordination of the individual person to the state, 
 and of the subserviency of all individual action 
 and life to the accomplishment of the general 
 aim of humanity." ' 
 
 ' Maine, Ancieni LaTi', 3d Amer. ed., p. 23. 
 ' Amos, Science of Law, pp. 44, 45.
 
 II. 
 
 HOW AND WHERE TO FIND THE LAW. 
 
 Importance of the Law Library. — At first 
 the student may be likely to accept as law 
 everything his teachers state to be law, and he 
 may be inclined to take without question all 
 of the statements of the text-books he reads. 
 The instruction given by a capable law teacher, 
 the advice and suggestions of an intelligent 
 and experienced practitioner, the statements 
 of a careful text-writer, are of great value to 
 the student. Their views may be in a high 
 degree clear and accurate, yet the student 
 should bear in mind that neither law teachers, 
 nor practising lawyers, nor text-writers are the 
 authorized repositories of the law. It is in the 
 law library that these repositories are to be 
 found. 
 
 Classes of Law Books. — Every law library 
 worthy of the name, whether it be the great 
 library of the associated lawyers in some of 
 our larger cities, or the comparatively scanty 
 collection of the average practitioner in city 
 or country, consists of these four classes of 
 books :
 
 How and Where to Find the Law. 9 
 
 1. Statutes. 
 
 2. Reports (of the decisions of the courts of 
 last resort — i.e., courts from which no further 
 appeal can be taken). 
 
 3. Digests. 
 
 4. Text-books. 
 
 A law library sometimes includes other 
 classes of books — for example, Reports of de- 
 cisions of lower courts, books of citations, law 
 dictionaries, and law magazines ; but the four 
 classes first named are regarded as the neces- 
 sary working tools of every lawyer. Of these 
 four important classes, however, only two — 
 the Statutes and Reports — are, with one ex- 
 ception to be explained later, the authentic 
 repositories of the law itself. 
 
 Statutes. — There are some laws which are 
 enacted by the authorized representatives of 
 the people, and are written down expressly in 
 constitutions, or treaties, or acts of Con- 
 gress, or acts of the legislature. These rules 
 constitute the statutory law, or, as it is some- 
 times called, the written law, and are pub- 
 lished in the volumes of" Statutes." 
 
 The statutory law of the federal government 
 of the United States consists of the constitu- 
 tion of the United States, and of the acts of 
 Congress passed, and treaties made, within 
 the authority conferred by the constitution. 
 The statutory law of any of the individual
 
 lo Introduction to Law. 
 
 states consists of the state constitution, so 
 far as it is not repugnant to the United States 
 constitution, and consists, furthermore, of the 
 acts of the legislature, so far as such acts are 
 not repugnant to either the United States 
 constitution or the state constitution. 
 
 Public and Private Acts. — Some of these 
 acts are applicable to only a particular person 
 or association, and are called private acts, to 
 distinguish them from public or general acts. 
 An act granting a pension or allowing a per- 
 sonal claim is an example of a private act. 
 The important practical difference is that a 
 court will assume to have knowledge of a pub- 
 lic act, while one who seeks to avail himself of 
 a private act must both plead it and prove it. 
 
 Form of an Act. — In form, a modern legisla- 
 tive act consists essentially of a statement of 
 what is enacted, to which statement is prefixed 
 the title of the act. A description that has 
 sometimes been given divides the act into 
 three parts : (i) the title, beginning " An 
 act to . . . ; " (2) the preamble, beginning 
 " Whereas . . . ; " and (3) the purview, begin- 
 ning " Re it enacted . , . ; " but in American 
 legislative acts there is usually no preamble. 
 
 Publication of Statutory Law. — After a session 
 of a state legislature all of the statutes j^assed 
 at that session arc published, arranged rliroiio- 
 logically, each statute numbered as a chapter,
 
 How and Where to Find the Law. 1 1 
 
 in a volume commonly known as the " Session 
 laws." At intervals all of the general acts 
 in effect in the state are brought together, ar- 
 ranged according to subjects, and republished, 
 with the federal constitution and the state con- 
 stitution prefixed. The title given to this 
 general compilation of the statutory law of a 
 state varies more or less among the states. 
 Some of the titles used are : Statutes, Revised 
 statutes, Revised laws. Revised codes, Com- 
 piled laws. Compiled statutes, General laws, 
 General statutes. Public statutes, Codes, An- 
 notated codes. The acts of each session of 
 Congress are similarly published at the end of 
 the session, and at the end of each Congress 
 arc republished together under the title 
 " Statutes at large," the acts in both publica- 
 tions being arranged cJironologically. The 
 whole of the federal statutory law is also pub- 
 lished under the title " Revised statutes," the 
 arrangement in this publication being accord- 
 ing to subjects. To find the present statutory 
 law of a state or of the United States, it is, 
 therefore, necessary to consult the " Revised 
 statutes" (or whatever may have the corre- 
 sponding title in any state), and also the" Ses- 
 sion laws" which supplement them. The 
 student should make a careful inspection of 
 these volumes of the statutory law of the 
 United States and of his own state, in order
 
 12 Introduction to Law. 
 
 to understand more fully the form of a statute 
 and the general plan according to which the 
 matter contained in the volumes is arranged. 
 
 Reports. — To this brief statement concern- 
 ing statutory law there must be added the im- 
 portant fact, that statutory law cannot foresee 
 and provide for all the cases that may arise for 
 settlement by the courts, and that a statute 
 itself may be of doubtful character. But while 
 this is so, there does exist a system of rules 
 and principles which courts apply in the ab- 
 sence of any express statutory law capable of 
 settling the matter in dispute, and for the pur- 
 pose of determining the meaning and validity 
 of a doubtful statute. This system of rules 
 and principles is called the Common law, case 
 law, unwritten law, or customary law, and is 
 deposited in the Reports of the decisions of 
 the courts of last resort. 
 
 The acts of Congress and of a state legisla- 
 ture have no validity if they are repugnant to 
 the " fundamental law" — that is to say, to the 
 constitution. One of the most noteworthy 
 features of our system of government — -a fea- 
 ture that endows the judiciary with vast au- 
 thority — is the fact that to the courts is given 
 the power to determine whether a legislative 
 act is contrary to the constitution. In Great 
 Britain, on the other hand, Parliament is all- 
 powerful ; the English courts cannot declare a
 
 How and Where to Find the Law. 1 3 
 
 legislative act to be unconstitutional. In this 
 country a statute which is understandable, and 
 which, if called upon, will also be able to run 
 the gauntlet of the courts without destruction 
 by being held unconstitutional, will then pre- 
 vail, to the extent of its provisions, over the 
 Common law. 
 
 But while the statutory law does prevail to 
 this degree over the Common law, the domain 
 of the latter is the more extensive. When 
 an issue arises for which no provision has 
 been made by statutory law, or when a 
 statute relied upon is doubtful, the law ap- 
 plicable to the issue thus unprovided for, or to 
 the testing of the doubtful statute, will be 
 found in the Common law. The question will 
 either have been answered already by the Com- 
 mon law in a rule laid down in deciding some 
 previous case virtually like the one under con- 
 sideration, or if the case in hand presents a 
 new question, the court will then search among 
 previous decisions upon similar questions, and, 
 finding the principle upon which those cases 
 were decided, will apply such principle to the 
 new question.' 
 
 Form of a Case. — A case, as it appears in the 
 Reports, usually consists of the following parts : 
 
 I. The title, this consisting of the names of 
 the parties. 
 
 ' Hence the name Case law.
 
 14 Introduction to Law. 
 
 2. The head-note or syllabus, In small type, 
 by -which the reporter or judge indicates briefly 
 the purport of the case and the rule applied 
 to it. 
 
 3. A statement of the form of action and of 
 the manner in which the appeal has been 
 brought up to this higher court. 
 
 4. A statement of such facts and previous 
 proceedings in the case as present concisely 
 the matters upon which the court is asked to 
 render a decision. This statement is often not 
 placed here, but is given by the court in its 
 opinion. 
 
 5. The names of the attorneys on both sides, 
 with or without an abstract of the arguments 
 presented by them. 
 
 6. The opinion of the court. 
 
 7. A statement by the court of what dispo- 
 sition shall be made of the case. 
 
 Njunbcr of Reports.— Ix. is evident, then, that 
 the case law or Common law, and the Reports 
 which are the repositories of that body of law, 
 are of vast importance. The United States 
 and the individual states has each a series of 
 Reports of the decisions of its own court of 
 last resort, and besides these the Reports of 
 the decisions of some of the subordinate courts 
 are also published. The total number of vol- 
 umes of Reports of American courts is about 
 five thousand, and it is to be noted that these
 
 How and Where to Find the Law. 1 5 
 
 volumes do not ordinarily contain the opinions 
 in absolutely all of the cases decided, but of 
 those which the judges, or sometimes the 
 official reporters, esteem to be of sufficient im- 
 portance to make the publication of them ad- 
 visable. Inasmuch as the parent of our Ameri- 
 can case law is the Common law of England, 
 the Reports of the English courts are often 
 referred to as evidence of the existence of 
 some rule or principle that should be applied 
 by our courts. This fact makes it necessary 
 that the English Reports should at times be 
 accessible, and adds largely to the mass of case 
 law that the American lawyer has to take into 
 consideration. 
 
 Names of Reports. — The Reports of the 
 United States Supreme Court are now known 
 as the " United States Reports," and those of 
 the highest courts in the several states are en- 
 titled briefly after the name of the state — for 
 example, " Alabama Reports," " New York 
 Reports." Formerly, however, it was com- 
 mon to name the Reports after the reporter 
 through whom they were issued — for example, 
 Cranch's Reports (U. S. Supreme Ct.), Gray's 
 Reports (Massachusetts) — and the name then 
 applied is in most instances still retained, for 
 those particular volumes, even when the later 
 method has been adopted. 
 
 From the account eiven above as to the
 
 1 6 Introductio7i to Law, 
 
 manner in which Reports are utiHzed, it is 
 apparent that courts and lawyers are constantly- 
 referring to decided cases contained in previ- 
 ous volumes, or, as it is called, citing authori- 
 ties. For economy in so doing, the reference 
 to the Reports is almost invariably made by 
 an abbreviated title — for example, the citation 
 * ' Jcwett v. Stockton, 3 Yerg. 492 ' ' directs the 
 reader to the case of Jcwett' s Lessee v. Stockton, 
 at page 492 of vol. 3 of Yerger's Reports of the 
 decisions of the Supreme Court of Tennessee. 
 A list of these abbreviations, with explanations 
 of them, will be found in the second edition of 
 the American ajtd English Encyclopcedia of Law, 
 vol. i., pp. 102-161 ; Cooley's edition of Black- 
 stone's Commentaries, vol. i. ; Bouvier's Law 
 Dictionary, title Abbreviations ; Soule's Law- 
 yer s Reference Manual ; Chase's edition of 
 Blackstone's Commentaries, Appendix ; and oc- 
 casionally in the catalogues of law-book pub- 
 lishers. Any one who uses law books will find 
 it necessary to know the abbreviations by 
 which the Reports of his own state are cited, 
 and ought to know the abbreviations applied 
 to such of the other Reports as are most fre- 
 quently cited. 
 
 Unofficial Reports. — Besides these ofificial 
 Reports there are series of unofficial, but 
 hi^dily accredited Rej^orts, published by pri- 
 vate enterprise. The " National Reporter Sys-
 
 Hoiv and Where to Find the Law. 1 7 
 
 tern" ' now includes all current decisions of all of 
 the courts of last resort in the United States, 
 and includes as well the decisions of some of the 
 lower courts. For convenience in this scheme 
 of publication, the territory of the United 
 States is divided into groups of states, and a 
 periodical Reporter, appearing at frequent inter- 
 vals, is devoted to each group. There is thus 
 a Northeastern, Northwestern, Pacific, Atlantic, 
 Southwestern, Southeastern, and a Southern Re- 
 porter. The system includes also a Federal 
 and a United States Supreme Court Reporter to 
 cover the federal appellate decisions. This 
 comprehensive plan has done much to make 
 manageable the huge and rapidly increasing 
 bulk of American case law. The American 
 Decisions, American Reports, and American 
 State Reports ' form a consecutive series which 
 contains, with useful annotations, all the cases 
 which the editors believe to be of general value 
 and authority, decided in the various state 
 courts, from the earliest issue of state Re- 
 ports down to the present time. The Lazvyers' 
 Reports Annotated^ have the samie general aim 
 as the series last mentioned, except that the 
 L. R. A. contain cases no farther back than 
 
 » West Publishing Co., St. Paul, Minn. 
 " Bancroft- Whitney Co., San Francisco. 
 2 Lawyers' Co-operative Publishing Co., Rochester, 
 N. Y.
 
 1 8 Introduction to Law. 
 
 1888, but do contain decisions of federal as 
 well as state courts. 
 
 The student should now look through care- 
 fully the latest volume of the Reports of his 
 own state, and thoroughly familiarize himself 
 from title-page to index with the general plan 
 of the book, and the purpose of each part; and 
 singling out some case, note the parts of which 
 it is made up. 
 
 Digests and Text-books. — Having thus 
 considered Statutes and Reports, the authentic 
 repositories of the law itself, we may turn now 
 to Digests and text-books, these two classes 
 of works being of scarcely less practical im- 
 portance. Digests and text-books have one 
 useful purpose in common, for both serve as 
 pointers to direct the lawyer to any particular 
 part of the law he may be seeking in the great 
 mass of recorded statutes and judicial decisions. 
 Text-books, with the exception of a very few 
 that aim to cover the whole field of law, 
 treat only of some one greater or smaller 
 branch of law, as, for example, Anson on Con- 
 tract or May on Insurance (a particular kind of 
 contract); but whether their scope be great or 
 small, they serve to give a view of the law by 
 topics, with citations of the statutes or cases 
 which are authority for the statements made 
 in the book. 
 
 Digests. — The Digests arc digests of the
 
 How and Where to Find the Law. 1 9 
 
 cases that have been published in the Reports, 
 and aim to give in brief form, arranged accord- 
 ing to topics, the points decided by the cases. 
 What the index of a single volume of Reports 
 does for that volume, a Digest does for a series 
 of volumes of Reports. Each state and the 
 United States has a Digest of its own Reports. 
 These Digests are usually cited by the name 
 of the state — for example, California Digest ; 
 but sometimes by the compiler's name — for 
 example, Stanton s Digest (Kentucky). Be- 
 sides such particular Digests there is the gen- 
 eral United States Digest, which covers all the 
 state and federal Reports down to 1888 ; the 
 American Digest (annual bound volumes), pub- 
 lished since 1888, of the state and federal de- 
 cisions ; the General Digest (at present semi- 
 annual bound volumes) of the decisions of the 
 principal courts in the United States and of 
 some other courts ; and periodical Digests of 
 the series that includes the Anierieati Deeisions, 
 American Reports, and American State Reports. 
 Text-books — Reference Text -books. — So far 
 the use of Digest and text-book is the same, 
 but some text-books hav^e a further value. 
 Text-books may be divided roughly into three 
 general classes. One class, which is by far the 
 largest, has no usefulness substantially different 
 in kind from that of a Digest of the law of 
 England and America upon some special
 
 20 Introduction to Law. 
 
 topic. The authors have not such legal learn- 
 ing and discrimination as to lend the weight 
 of much personal authority to the conclusions 
 they give as a result of their consideration of 
 the cases they cite to support their conclu- 
 sions. In short, such text-books may be use- 
 ful for the citations of authorities contained in 
 them, but the careful lawyer does not rely with 
 much confidence upon the opinions of the au- 
 thors. It is the next class of text-books that 
 is of more importance. 
 
 Influential Text-books. — These more valuable 
 books are written by men who are generally 
 recognized by lawyers and courts as learned in 
 the law, and as having power to analyze it and 
 extract its principles. Such works, when re- 
 ferred to in argument, are given careful atten- 
 tion by the profession, and enter seriously into 
 the deliberation of the courts. But the opin- 
 ions of such writers, highly valued as they may 
 justly be, are, nevertheless, not law, unless the 
 courts adopt such opinions as their own. As 
 examples of the best known of this class of 
 text-books, two works that are classics to the 
 American lawyer may be mentioned, Black- 
 stone's Coniuientaries on the Laivs of England 
 and Kent's Commentaries on American Laiv.^ 
 
 ' It is not expedient to give here a selected list of valu- 
 able texl-books, but in naming a few current works for 
 the sake of ilkii.tralion, it will j)robably be quite gener-
 
 Hoiv and Where to Find the Law. 2 1 
 
 We must dwell for a moment upon Blackstone 
 and Kent. Sir William Blackstone 's Conuncn- 
 taries, first issued in England during the period 
 1765-69 and in America 1771-72, has ever 
 since its publication held the foremost place 
 among law text-books in the English language. 
 The work covers the entire range of English 
 law, and was the first comprehensive treatise 
 that, by its arrangement and style, made the 
 large subject of which it treats generally ac- 
 cessible. It has been usually the first book 
 put into the hands of an office student, and is 
 used to a greater or less extent in many of our 
 law schools, particularly in the study of the 
 law of real property. The book has had espe- 
 cially great influence in America, because it 
 was published just before the Revolution, and 
 not long before the colonies were beginning 
 to form their state governments, and needed 
 some adequate presentation of the Common 
 law of England, which was, with various modi- 
 fications, adopted as the law of the new states. 
 There were few books that contained a general 
 presentation of the Common law, and few of 
 the American lawyers had acquired their train- 
 ing in England. These Commentaries came, 
 therefore, at an opportune time, and this fact, 
 
 ally agreed that Cooley's Constittitional Limitations, 
 Bishop's Marriage and Divorce, and Dillon's Munici- 
 pal Corporations come well within this influential class.
 
 2 2 Introduction to Law. 
 
 together with the absolutely high merit of the 
 work, makes it easily understood why Black- 
 stone has been so frequently cited in our law. 
 
 Whether it is advisable that Blackstone 
 should nowadays be the first law book to be 
 read by a student depends somewhat upon the 
 student's preliminary training. It is, perhaps, 
 better to select Kent's Covinicntarics as the 
 first of the larger treatises to be put into the 
 hands of the office student, for Blackstone's 
 style, though of rare quality, is somewhat ob- 
 solete ; and, moreover, the student might be 
 likely to accept without question Blackstone's 
 views of the origin, nature, and declaration of 
 law, which views are not always in accord with 
 those entertained by later scholarly critics, 
 who are familiar with modern scientific meth- 
 ods of historical research. This much is cer- 
 tain, however, that the student, whether in 
 office or law school, should some time during 
 his course read Blackstone carefully, for much 
 of it is law to-day, and even the much in it 
 that is obsolete now is necessary to explain 
 tlie present existing American law.' 
 
 After more than a quarter of a century of 
 judicial duties, James Kent, upon his retire- 
 ment from public office in 1823, was appointed 
 
 ' Among the more recent American editions of Black- 
 stone may be named Cooley's, Sharswood's, and Ham- 
 mond's, and the variorum edition by Lewis. Chase's
 
 How and Where to Find the Law. 23 
 
 professor of law in Columbia College, New 
 York. Out of his law lectures came his Coui- 
 mentarics, the four volumes of which were pub- 
 lished during the period 1826-30. While 
 Blackstone aimed to cover the whole field of 
 the law of England, Kent tried to do no less 
 for American law, and with a result equally 
 successful. While Kent's Commentaries are 
 not now commonly used for purposes of in- 
 struction in our law schools, the work may 
 safely be recommended to office students and 
 the general reader as the first of the great 
 treatises that should be read on American law,' 
 Authoritative Text-books. — There now re- 
 mains a third and still smaller class of text-books 
 to be described. These are even more than in- 
 fluential; they are cited and relied upon as state- 
 ments of the law itself where direct judicial au- 
 thority is wanting. This group constitutes the 
 exception previously alluded to when it was 
 stated that Statutes and Reports were alone, 
 with one exception, the only authentic reposi- 
 tories of the law. We here have to do with 
 those earlier legal treatises that were written 
 
 somewhat abridged edition is perhaps the most useful 
 one-volume edition, and is made especially so for the 
 student by the full appendices and index. 
 
 ' The latest edition is the 14th, edited by John M. 
 Gould, and containing also the notes of Judge Oliver 
 Wendell Holmes, Jr., and Charles M. Barnes, who were 
 earlier editors.
 
 24 Introduction to Law. 
 
 by men learned in the Common law, at a time 
 when the decisions of courts were reported in 
 merely the scantiest way. But these authori- 
 tative treatises are cited infrequently by our 
 American courts to-day, and are not likely to 
 be found in the average library of the practi- 
 tioner. Some examples of the few books that 
 come within this class are Littleton's Tenures, 
 the works of Sir Edward Coke and the works 
 of Sir Matthew Hale.' 
 
 Having in mind, then, what has been said 
 of the character and purpose of text-books 
 and Digests, the student should now look 
 through the Digest of the Reports of his own 
 state, and glance through a few text-books, in 
 order to get a preliminary acquaintance with 
 the plan upon which such works are arranged. 
 
 Other Classes of Law Books. — Li conclud- 
 ing this description of the law library, a brief 
 word must be given to other classes of law 
 books. 
 
 Reports of Decisions of Lower Courts, such, for 
 example, as Bosworth's Reports of the de- 
 cisions of the Superior Court of the city of 
 New York, a court lower than the Court of 
 Appeals, which is the highest court in New 
 
 ' A list of the books of this description, with an esti- 
 mate of their value, is given in Rrun's Legal Jtidgmetit, 
 Townshend's edition, chap. xii. An account will also 
 be found in Kent's Ci>/ini!f/!fin-/('s, vol. i.. pp. 499 511.
 
 How and Where to Find the Law. 25 
 
 York State. The decisions of a subordinate 
 court afterward control that court, unless 
 they are overturned on appeal to a higher 
 court. The published decisions of the lower 
 courts are also used for the purpose of per- 
 suading the higher court. 
 
 Books of Citations. — These arc volumes giv- 
 ing an alphabetical list of titles of decided 
 cases, each title being followed by citations of 
 other instances in which the case has been dis- 
 cussed or referred to. 
 
 Lazv Dictionaries. — These, as the title indi- 
 cates, are works explaining briefly the meaning 
 of technical terms used in law. 
 
 Lazv Periodicals or Magazines. — These files 
 of law journals contain many notes and com- 
 ments on cases ; and also frequent articles of 
 value upon legal subjects, by writers of high 
 reputation and ability in the profession. A 
 key to the wealth of matter contained in these 
 journals is Jones's hidcx to Legal Periodical 
 Literature, in which the contents of one hun- 
 dred and fifty-eight different sets of law peri- 
 odicals are indexed down to January, 1887. 
 
 Legal Bibliography. — Of the books about law 
 books, special mention must be made of Soule's 
 Lawyers' Reference Manual of Law Books and 
 Citations (Boston, 1883). It contains (i) a list 
 of all American Reports, Digests, and Statutes, 
 with notes in regard to the editions and their
 
 26 Introduction to Law. 
 
 peculiarities ; (2) a list of all the law Reports 
 of Great Britain and her colonies ; (3) an index 
 of the editors of Reports, Statutes, and text- 
 books, and of the authors of text-books ; 
 (4) an index of text-books arranged according 
 to subjects. 
 
 The Practitioner's Library. — The working 
 library of a lawyer will usually consist of the 
 Statutes of his own state, the Reports of the 
 decisions of the court of last resort in his own 
 state, the Digest of those Reports, and a selec- 
 tion of text-books. If a private law library is 
 more extensive, it is likely to contain, besides 
 these, the Reports of the United States Su- 
 preme Court, a Digest of those Reports, the 
 Revised Statutes of the United States, and 
 possibly the Reports of some other state or 
 states, New York and Massachusetts being 
 generally first preferred, because of the long 
 history of their courts, the vast importance of 
 the commercial and other interests that these 
 courts have been called upon to care for, and 
 also because of the uniformly high character 
 and ability of the judges sitting in their appel- 
 late courts.' 
 
 ' Thus we find in the opinion of the United States 
 Supreme Court in Buck v. Colbath (3 Wall. 334, 341) 
 this expression : " . . . the Supreme Court of Massa- 
 chusetts -a court whose opinions are always entitled to 
 great consideration."
 
 III. 
 
 THE OPERATION OF LAW. 
 
 How the Common Law Grows. — The ex- 
 ternal features of the process by which statu- 
 tory law is enacted are matters of common 
 knowledge. But the life history of the Com- 
 mon law is not generally known outside of the 
 legal profession, and even within the profession 
 parts of its history and way of operation are 
 still questions for investigation and discussion. 
 From the year 1194, the date of the earliest 
 extant plea-rolls in England, down to the 
 latest volume of Reports in the newest state 
 of the Union, extends a succession of records 
 of the Common law. The most recent volume 
 of the Utah Reports has an ancestry that runs 
 back for seven hundred years. Every ques- 
 tion to which the Common law is applicable 
 must be decided according to the rules and 
 principles to be found somewhere in these 
 judicial records. These previous cases, in 
 which are to be found the rules and principles 
 to be applied, are z2iSS.&di precedents. " At the 
 present moment a rule of English law has first 
 to be disentangled from the recorded facts of
 
 28 Introduction to Law. 
 
 adjudged printed precedents, then thrown into 
 a form of words . . . and then appHed to the 
 circumstances of the case for adjudication." ' 
 
 For example : A. brings upon his premises 
 and uses a steam boiler. Through no fault of 
 his the boiler explodes and injures B. Must 
 A. pay for the damage ? There is one line of 
 precedents from which is extracted a principle 
 that a man must use due care toward his fel- 
 low-men in the conduct of his affairs. A. has 
 used due care, and, therefore, if this principle 
 applies, A. is not liable. But there is another 
 line of precedents from which is drawn a rule 
 that, if one brings and keeps upon his premises 
 certain things that are in their nature likely to 
 escape and do damage, no amount of care will 
 excuse him from liability if they do escape and 
 do damage — for example, if his cattle escape 
 from his enclosure and damage a neighbor's 
 crop. The court, after hearing the opposing 
 sides, considers the arguments, and then de- 
 cides that the present case does not come 
 within the rule as to the escape of dangerous 
 things, but does come within the general prin- 
 ciple requiring only due care, and that, there- 
 fore, A. is not liable for the damage done to 
 B.' The steam-boiler case then becomes itself 
 
 ' Maine, Ancient Lata, 3d Amer. eel., p. 13. 
 ' Marshall v. 1 1 'el wood, 38 N. J. L. (New Jersey 
 Law Reports), 339.
 
 The Operation of Law. 29 
 
 a precedent. The case with its particular facts 
 is added to the many cases that have been de- 
 cided before, and from this total is, in turn, 
 " disentangled" the rule and the principle 
 underlying it which are to be applied when 
 the next case of like kind arises for settle- 
 ment. 
 
 Adaptability of the Common Law. — The 
 Common law has within itself this power of 
 adaptability ; in order to meet new conditions, 
 it extends or modifies its principles, and so is 
 ever at hand to be applied to all those ques- 
 tions which the statutory law has not foreseen 
 and provided for. This power may be seen in 
 the way the Common law adapted itself to the 
 new circumstances of cases arising out of the 
 introduction of railroads during the first half 
 of the present century, and the same process 
 of adaptation is now going on with reference 
 to the novel circumstances of the questions 
 that have arisen from the recent introduction 
 of the various applications of electricity. The 
 method of operation is thus described by Chief 
 Justice Shaw, of Massachusetts, in the Nor- 
 xvay Plains Co. v. Boston and Maine Railroad 
 (i Gray, 267, 268) : 
 
 " The liability of carriers of goods by rail- 
 roads, the grounds and precise extent and lim- 
 its of their responsibility, are coming to be sub- 
 jects of great interest and importance to the
 
 30 Introduction to Law. 
 
 community.' It is a new mode of transporta- 
 tion, in some respects like the transportation 
 by ships, lighters, and canal-boats on water, and 
 in others like that by wagons on land ; but in 
 some respects it differs from both. Though 
 the practice is new, the law by which the rights 
 and obligations of owners, consignees, and of 
 the carriers themselves are to be governed is 
 old and well established. It is one of the great 
 merits and advantages of the Common law 
 that, instead of a series of detailed practical 
 rules, established by positive provisions and 
 adapted to the precise circumstances of par- 
 ticular cases, which would become obsolete 
 and fail when the practice and course of business 
 to which they apply should cease or change, the 
 Common law consists of a few broad and com- 
 prehensive principles founded on reason, nat- 
 ural justice, and enlightened public policy, 
 modified and adapted to the circumstances of 
 all the particular cases which fall within it. . . . 
 When new practices spring up, new combina- 
 tions of facts arise, and cases arc presented for 
 which there is no precedent in judicial decision, 
 they must be governed by the general princi- 
 ple applicable to cases most nearly analogous, 
 but modified and adapted to new circumstances 
 by considerations of fitness and propriety, of 
 reason and justice, which grow out of those cir- 
 ■ Written in 1854.
 
 The Operation of Law. 3 1 
 
 cumstances. The consequence of this state of 
 the law is that when a new practice or new 
 course of business arises, the rights and duties 
 of parties are not without a law to govern 
 them ; the general considerations of reason, 
 justice, and policy which underlie the par- 
 ticular rules of the Common law will still apply, 
 modified and adapted by the same considera- 
 tions, to the new circumstances." 
 
 Growth and Adaptability Illustrated. — The 
 student cannot understand too well the method 
 of operation of the Common law, for by that 
 means he will come nearer to comprehending 
 the nature of the Common law than by learn- 
 ing any of the formal definitions of it that have 
 been given by law writers. It is, therefore, 
 worth while to turn to another illustration, 
 this time taken from the " leading case" ' of 
 Munn V. Illinois, 94 U. S. (United States Su- 
 preme Court Reports), 113. The great agri- 
 cultural states of the West and Northwest send 
 their grain to Chicago, there to be transshipped 
 and forwarded by rail or water to the Atlantic 
 coast, and part of it thence to Europe. This 
 business grew to immense proportions, by 
 reason of the advantageous position of Chicago 
 and from other commercial causes. The con- 
 
 ' A "leading case" is the technical name given by- 
 lawyers to a case which marks the direction in which 
 some doctrine of the law subsequently tends.
 
 32 Introduction to Law. 
 
 ditious necessitated means for handling and 
 storing the grain at that point, and storehouses 
 or elevators had been erected as the trade 
 grew ; but the elevators were few in number, 
 and these were controlled by still fewer firms, 
 that fixed the elevator charges at their own 
 discretion. Thus they might not only exact a 
 fair charge, but also levy a tribute upon the 
 whole of this vast grain traffic. In 1872 the 
 Illinois legislature passed an act which fixed 
 the amount beyond which the elevator owners 
 were not to be allowed to charge for handling 
 the grain. The owners contested the law on 
 the ground that it was an unlawful interference 
 with their private business, and asserted that the 
 act was invalid because it was contrary to the 
 fourteenth amendment of the United States 
 constitution, which says that no state shall " de- 
 prive any person of life, liberty, or property, 
 without due process of law. ' ' They contended 
 that if the legislature of a state could, without 
 the consent of the owner, arbitrarily determine 
 the price which the owner should be permitted 
 to receive for the use of his property, it could 
 deprive him of his property as effectually as 
 by its confiscation or destruction. The ques- 
 tion, therefore, to be settled by the United 
 States Supreme Court was as to the con- 
 struction to be put upon this clause of the 
 constitution, and whether the clause was ap-
 
 The Operation of Law. 33 
 
 plicable to the circumstances of the present 
 case. 
 
 It was clear and conceded on both sides that 
 while, on the one hand, a person cannot be 
 deprived of his property without due process 
 of law, yet, on the other hand, our constitu- 
 tions expressly state or necessarily imply, and 
 it is a fundamental principle of the Common 
 law, that, even though pecuniary loss may 
 ensue to individuals, some regulation of per- 
 sons and property is absolutely essential 
 to the existence of any civilized state. For 
 example, any state must have the right to tax, 
 and to exercise what are called its " police 
 powers," in order to secure the peace, safety, 
 and health of the community at large. These 
 police powers are exercised to prohibit or limit 
 the sale of liquors ; to suppress a nuisance in 
 the use of private premises ; to compel the use 
 of safety appliances on railroads, and are called 
 into operation in countless other ways. 
 
 But can these police powers be used to the 
 extent of reasonably limiting the compensation 
 a man may receive for the use of his private 
 property, and if so, where shall we find prece- 
 dents to warrant us in saying that this is the law ? 
 The great principles of liberty, and its regula- 
 tion, as embodied in our constitutions, were es- 
 tablished in England by our ancestors, and, 
 therefore, Avhen a statute is challenged as being
 
 34 Introdtutio7i to Law. 
 
 contrary to the constitution, and the meaning of 
 some unsettled clause in the constitution has 
 to be discovered, we may look to the princi- 
 ples of the Common law for a solution of the 
 difficulty. If it is found that the principles of 
 the Common law of England authorized, under 
 some circumstances, the public control of pri- 
 vate property to the extent of regulating com- 
 pensation for its use, it can be determined 
 that our constitutions which contemplated the 
 existence and continuance of those principles 
 in this country, therefore contemplated the 
 existence of the right to regulate compensation 
 for the use of private property, under like cir- 
 cumstances, in this country. 
 
 Turning, therefore, to the precedents of the 
 English Common law, there is found the fol- 
 lowing statement in Lord Hale's treatise De 
 portibiis viaj'is (i Hargreave's Laiv Tracts, 
 pp. TJ, 78), written over two hundred years ago : 
 
 A man, for his own private advantage, may 
 in a port town set up a wharf or crane, and 
 may take what rates he and his customers can 
 agree. ... If the king or subject have a 
 public wharf unto which all persons that come 
 to that port must come and unlade or lade 
 their goods as for the purpose, because they 
 arc the wharfs only licensed by the queen, 
 . . . or because there ?s no other wharf in that 
 port, as it may fall out where a port is newly
 
 The Operation of Law. 35 
 
 erected, . . . the duties must be reasonable 
 and moderate. . . . For now the wharf and 
 crane and other conveniences are affected with 
 a public interest. " ' If, then, any circumstances 
 could exist to affect the elevators " with a 
 public interest," the Illinois legislature did 
 not, in reasonably regulating the elevator 
 charges, act contrary to the intent of the con- 
 stitution. It was held that the elevators were 
 affected with a public interest, and thus this 
 doctrine declared in Miinn v. Illinois is of im- 
 mense importance in these days of business 
 combinations. The case affords a striking ex- 
 ample of the manner in which the principles 
 of the Common law adapt themselves to the 
 needs of society under ever-changing circum- 
 stances." 
 
 Adherence to Precedents (Stare Decisis). 
 — At first sight it may seem strange that a 
 court should thus cling to precedents in ren- 
 dering a decision, but upon second thought 
 the reasons for this practice become apparent. 
 First, there is in all men an instinct to follow 
 custom, to do what has been done before. 
 
 > This reliance upon the citation from Lord Hale's 
 treatise affords an interesting illustration of the state- 
 ment {ante, pp. 23, 24) that there are a few treatises 
 which have all the authority of judicial decisions. 
 
 " The case also serves to illustrate some of the relations 
 between statutory law and Common law heretofore men- 
 tioned, a7ite, pp. 12, 13.
 
 36 Introduction to Law. 
 
 Second, courts should not, any more than 
 other sensible human beings, neglect to study 
 the accumulated experience of their predeces- 
 sors. Third, and of especial importance in the 
 administration of law, this practice conduces 
 to certainty, a quality which is in the highest 
 degree essential if the law is to be obeyed. 
 
 If it is known that a decision, once arrived 
 at, will be followed in the like case in time to 
 come, the uncertainty of men's affairs is dimin- 
 ished and occasions of dispute taken away. 
 The same questions must not be agitated for- 
 ever." ' 
 
 Therefore, we find the court saying in Yale v. 
 
 Dederer, 68 N. Y. 329, 335 : "It is better to 
 
 adhere to a rule of doubtful propriety, which 
 
 has been deliberately settled for a long series 
 
 of years and repeatedly reiterated by all the 
 
 courts of the state, than, by overturning it, to 
 
 weaken the authority of judicial decisions, and 
 
 render the law fluctuating and uncertain. . . . 
 
 There is e\'ery reason for referring the question 
 
 to the legislative power to determine definitely 
 
 what rule shall finally prevail." The doctrine 
 
 which requires courts to follow precedents is 
 
 ' Pollock, Essays in Jurispjudenre, pp. 50-57. This 
 method of growth from precedents is ajitly expressed by 
 Tennyson : 
 
 " A land of seUlcd government, 
 A land of just and old renown, 
 Where Freedom slowly broadens down 
 From precedent to precedent."
 
 The Operation of Law. 37 
 
 termed stare dtxisis (to stand by precedents). 
 The following brief opinion, in its entirety, 
 given in the case of Puffer \. Orange, 122 Mass. 
 389, affords a very simple example of a state- 
 ment of rules, based on precedents, with cita- 
 tions of the precedents and an application of 
 the law to the facts of the case in hand : 
 
 " Gray, C. J. The law which governs this 
 case is well settled by the decisions of this court. 
 A town is bound to erect barriers or railings 
 where a dangerous place is in such close prox- 
 imity to the highway as to make travelling on 
 the highway unsafe. Stevens v. Box ford, 10 
 Allen, 25 ; Babson v. Roekport, loi Mass. 93 ; 
 Britten v. Ciunmington, 107 Mass. 347. But it 
 is not bound to do so to prevent travellers from 
 straying from the highway, although there is a 
 dangerous place at some distance from the 
 highway which they may reach by so straying. 
 Sparhawk v. Salem, i Allen, 30 ; Adams v. 
 Natick, 13 Allen, 429 ; MurpJiy v. G lone ester, 
 105 Mass. 470 ; Commojiwealth v. Wilmingtoii, 
 105 Mass. 599 ; Warner v. Holyoke, 112 Mass. 
 362, In the case at bar there was no danger- 
 ous place and no defect or want of sufficient 
 railing, where the plaintiff's horse left the high- 
 way, and the dangerous place where the acci- 
 dent happened was reached by passing some 
 distance over a level space, and was at a spot 
 not in or contiguous to the highway, and which
 
 38 Introdtiction to Law. 
 
 the town was not bound to guard by a rail- 
 ing." 
 
 It is obvious that the Common law doctrine 
 of stare decisis would, unless softened in its 
 operation, have the effect of making the law 
 inflexible and incapable of meeting the needs 
 of society under new or changed circumstances. 
 This difificulty and other obstacles in the Com- 
 mon law have been overcome in three ways : 
 (i) by Judicial interpretation, (2) by Equity, 
 (3) by Legislation. 
 
 Judicial Interpretation. — By judicial inter- 
 pretation is meant the court's way of looking 
 at the case before it for decision, and at the 
 cases that arc brought forward as precedents. 
 Upon the way of looking at precedents will 
 depend the doctrine which is extracted from 
 them, and upon the aspect in which the facts 
 of the case to be decided present themselves 
 depends the application of this or that doc- 
 trine which has been extracted from the prece- 
 dents. For example, if, in the case of Mium 
 V. Illinois, the court had adopted a different 
 interpretation of the precedents urged upon it, 
 there would have resulted a conclusion quite 
 different from that which was reached ; and, 
 in fact, there was a strong dissenting opinion 
 by one of the judges, who did not agree with 
 the judicial interpretation of the precedents as 
 adopted by the niajorit)' of his fellow-judges.
 
 The Operation of Law. 39 
 
 The Function of Judges. — The most general 
 assurance we have that courts apply the right 
 principles is in the fact that the judges act 
 consciously or unconsciously under the influ- 
 ence and in the spirit of the time in which 
 they live. A question of law presents itself 
 when we ask what rule shall be applied to a 
 given state of facts. Usually the existence of 
 some of the facts is itself in dispute, and if so, 
 there must first be a trial to determine, by 
 judge or jury, what the facts of the case really 
 are. After the facts are ascertained, or if, as 
 sometimes happens, the parties are agreed as 
 to the facts, then follows the inquiry as to 
 what rules or principles should be applied to 
 those facts. And here comes in the great 
 function of the judge ; for he must decide. If 
 he is inefficient and applies the wrong principle, 
 he creates confusion in the law, and does harm 
 to society ; but if, possessing the technical 
 learning of a lawyer, united with practical wis- 
 dom, he applies the right principle, he helps 
 society to develop along the line of its best 
 hopes. Judge Oliver Wendell Holmes, Jr., 
 says of Chief Justice Shaw, of Massachusetts : 
 
 The strength of that great judge lay in an 
 accurate appreciation of the requirements of 
 the community whose officer he was. Some, 
 indeed many, English judges could be named 
 who have surpassed him in accurate technical
 
 40 Introductio7i to Law. 
 
 knowledge, but few have lived who were his 
 equals in their understanding of the grounds of 
 public policy to which all laws must ultimately 
 be referred. It was this which made him, in the 
 language of the late Judge Curtis, the greatest 
 viagistratc which this country has produced." ' 
 TJie Critical Study of Cases. — The profes- 
 sional ability of lawyers in arguing a question 
 of law, and of judges in deciding it, is thus 
 chiefly occupied with a critical study of previ- 
 ous cases, in order to determine whether the 
 previous cases do really support some alleged 
 doctrine, and, even if so, whether the facts 
 of the case at bar are not so materially differ- 
 ent from those of the previous cases as to 
 make such doctrine inapplicable to the present 
 case."" In studying any previous case, the 
 chief precept to be borne in mind is that the 
 court, in deciding it, administered law to the 
 facts of that case alone. It did not decide 
 what law would have been applied if the facts 
 had been different, or what law it would apply 
 to some supposed facts that might arise in the 
 
 ' Comtnon Law, p. io6. 
 
 ' The method of instruction in many of our law schools 
 is based more or less upon the idea that proficiency in 
 the analysis of cases is an important jjart of the training 
 of the student, and a number of volumes of selected cases 
 in various branches of the lawr have been published in 
 pursuit of the plan. A valuable aid is Wambaugh's 
 Study of Cases (2d cd., Boston, 1894).
 
 The Operation of Law. 41 
 
 future. A previous case has absolute authority 
 only to the extent of the doctrine necessarily in- 
 volved in deciding it as the court did decide it. 
 The doctrine of a previous case is to be found 
 in, or gathered from, the opinion of the court ;' 
 but the opinion is likely to contain also many- 
 other matters, as, for example, statements by 
 way of introduction ; a review of some pre- 
 vious cases that have very remote or no bear- 
 ing upon that case ; a general essay upon some 
 topic of the law, and speculations as to what 
 law might be applied under other circum- 
 stances. Any such statements as are not nec- 
 essarily involved in the doctrine actually held 
 in that particular case are not of binding au- 
 thority in deciding future cases, and are termed 
 dicta or obiter or obiter dicta. Thus we find 
 a court saying : " . . . When that question 
 arises upon an actual case — not upon one that 
 may come up at some future time — we will 
 endeavor to meet and settle it, but until that 
 time it is obvious that we would be exceeding 
 our powers were we to consider it. Any ex- 
 pression of opinion under such circumstances, 
 upon the abstract points, would be clearly 
 obiter, and would amount to nothing more 
 
 ' In Nebraska, however, the head-note or syllabus must 
 be considered, for it is a rule there that the members of 
 the court are bound only by the points as stated in the 
 syllabus of the case. Holliday v. Browne 34 Neb. 232, 
 234-
 
 42 Introduction to Law, 
 
 than the views of the judge delivering the opin- 
 ion ; it would not have the force or effect of a 
 judgment binding upon the court.'" Although 
 dicta are not of binding authority in deciding 
 future cases, yet they may be of service in per- 
 suading a court, especially when they are the 
 utterance of some judge who has a high reputa- 
 tion. Our federal Supreme Court and many of 
 our state courts have had, and now have some 
 strong judges whose dicta possess this extra 
 influence ; from among those not now living 
 one may name Shaw, of Massachusetts ; Kent, 
 of New York ; Gibson, of Pennsylvania ; and 
 Marshall, of the United States Supreme Court. 
 
 The study of cases thus really resolves itself 
 into what is called" distinguishing the cases," 
 and in most instances requires the power of a 
 clear mind specially trained to the exercise of 
 keen discrimination. A short and not com- 
 plicated illustration of " distinguishing a case" 
 is found in CoviuiomvcaltJi v. Newton, 123 
 Mass. 420, the whole of the opinion being as 
 follows : 
 
 " Morton, J. The search-warrant in this 
 case authorized the officer to enter and search 
 the house occuj)icd by Michael Conners. It 
 did not justify him in entering the tenement 
 occupied by the defendant. If, therefore, the 
 closet which the officer insisted upon search- 
 ' Gunn V. Central R. A'., 74 Ga. 50'j, 512.
 
 The Operation of Law. 43 
 
 ing was, in fact, a part of the defendant's tene- 
 ment, and was not used by Conners as a place 
 of keeping intoxicating liquors, the ofificer had 
 no right to enter it, and the defendant had the 
 right to resist his entry, using reasonable force. 
 The fact that the officer believed that the 
 closet was in the occupation of Conners cannot 
 affect the rights of the defendant. The 
 case differs from ConwionwealtJi v. Lcddy, 105 
 Mass. 381, because in that case the apart- 
 ment searched by the officer was occupied by 
 Galligan, the person charged in the complaint 
 and warrant, for the illegal keeping of intoxi- 
 cating liquors, by the consent of the defendant. 
 This apartment, therefore, was a part of the 
 tenement occupied by Galligan, and the search- 
 warrant included it." 
 
 Erroneous Decisions. — An effective safeguard 
 against the possibility of a wrong decision by 
 the court is secured by constituting several 
 judges the appellate court of last resort, and 
 requiring the concurrence of a majority of the 
 judges in any decision rendered. But even 
 the wisest of courts will err occasionally, and 
 by the time a similar case arises again, it may 
 have become evident that a wrong principle 
 has previously been applied. Under such 
 circumstances the courts do, in comparatively 
 rare instances, squarely overrule themselves. 
 In Hall V. Corcoran, 107 Mass. 252, we find the
 
 4-4 Introduction to Law. 
 
 court saying : " The respect due to the opin- 
 ions of those courts, and to the doubts which 
 have always been entertained by the bar of this 
 Commonwealth of the correctness of the de- 
 cision in Gregg v. IVj/man, has induced us to 
 reconsider the question, and upon full consid- 
 eration we are unanimously of opinion that it 
 was erroneous and must be overruled." Al- 
 most always, however, a court, instead of 
 directly overruling its previous decision, keeps, 
 at least nominally, within the principle of 
 s/are decisis, and adheres, or pretends to ad- 
 here, to its former decision, but at the same 
 time limits closely to the facts of that previous 
 case the doctrine which has since been found 
 to be objectionable. In brief, the court " dis- 
 tinguishes the cases" more sharply than usual, 
 and by a succession of such limitations every 
 time the objectionable case is appealed to as 
 authority by a lawyer in argument, the unsat- 
 isfactory doctrine is eaten away until it be- 
 comes a mere remnant. Thus the New York 
 Court of Appeals, referring to one of its pre- 
 vious decisions, that in the case of Ryan v. 
 N. V. C. R. R., says : " The Ryan case (35 
 N. Y. 210) should not be extended beyond the 
 precise facts which appear therein. Even if 
 correctly applied in that case, the principle 
 ought not to be applied to other facts." ' And 
 
 ' Fracev. N. V. L. E. &^ W. R. R., 143 N. Y. 182, 189.
 
 The Operation of Law. 45 
 
 the United States Supreme Court in Milwaukee 
 and St. P. Ry. v. Kellogg, 94 U. S. 469, 474, says 
 of the y^jrt';/ case, that it has " been the subject 
 of much criticism," and " it may, perhaps, be 
 doubted whether it has always been quite un- 
 derstood." The process is likewise indicated 
 by this extract from the opinion \\\ Anderson v. 
 Spence, 72 Ind. 315 : " We confess, however, 
 that it seems to us there was a real conflict 
 between the doctrine of Green v. Cressivell and 
 that of Cripps v. HartnoU, and that the dis- 
 tinction attempted to be made by the latter 
 case was simply the effort to get rid of an 
 unsound doctrine without expressly overrul- 
 ing it." 
 
 Legal Fiction. — In the earlier days of the 
 Common law its rigor was modified at times by 
 resort to a ruder method of interpretation, in 
 order to bring some new case within an exist- 
 ing principle. This method was by " legal 
 fiction," and many such fictions were adopted. 
 As an example, though not one of the earliest : 
 
 It is hard to explain why a master is liable 
 to the extent that he is for the negligent acts 
 of one who at the time is really his servant, 
 acting within the general scope of his author- 
 ity. Probably master and servant are ' feigned 
 to be all one person ' by a fiction. . . ." ' In 
 
 ' Holmes, J., in Dempsey v. Chambers, 154 Mass. 330, 
 332.
 
 46 Introductio7i to Law. 
 
 one of the earliest cases on this point (end of 
 the seventeenth century) this fiction is stated 
 in another way : " // sliall he intended XXizX. the 
 servant had authority from his master, it being 
 for his master's benefit."' But the real rea- 
 son, and without resort to fiction, is stated by 
 Chief Justice Shaw : " This rule is obviously 
 founded on the great principle of social duty, 
 that every man in the management of his own 
 affairs, whether by himself or by his agents or 
 servants, shall so conduct them as not to injure 
 another." ^ 
 
 Equity — Historical Sketch. — Equity was a 
 second way by which the hardship arising from 
 the rigor of the Common law was overcome. 
 The earlier recorded Common law in England 
 was chiefly concerned with the writs, by v/hich 
 a person against whom there was a complaint 
 was brought into court to meet his adversary. 
 These writs, summoning a man to appear, 
 were issued in the king's name, and drawn 
 up in the king's Chancery, an office which 
 did any writing that was to be done in the 
 king's name. The writs told the person 
 summoned a good many particulars of the 
 matters alleged against him. Gradually Chan- 
 cery came to keep on hand various blank forms 
 of writs, from which the complainant Avas to 
 
 ' Turbcrvillc v. Stampc, i Ld. Raymond, 264. 
 » Farivcllv. li. t> VV. R. R., 4 Metcalf, 55, 56.
 
 The Operatiofi of Law. 47 
 
 choose the one that would fit his cause of ac- 
 tion. The Chancery sold the writs, some 
 being obtainable, as a matter of course, by pay- 
 ing the fixed price, and others being had only 
 by special bargain. But it was seen that if the 
 king could, through his Chancery, invent new 
 writs, he could in this way devise new reme- 
 dies, and therefore new rights. As the system 
 could thus be used to create new laws, without 
 the approval of Parliament, the practice met 
 with a check, and it then came to be a settled 
 doctrine that no new writ could be introduced 
 except by statute. From the time of Edward 
 I., in the thirteenth century, it may be said 
 that Chancery had no longer independent 
 power to issue new kinds of writs, and it there- 
 fore followed that if the complainant could not 
 bring his cause of action within some one of 
 the writs already existing and for sale in Chan- 
 cery, he w^ould be without remedy in the Com- 
 mon law courts. " And thus the register of 
 writs in Chancery becomes the test of rights 
 and measure of law. Then round each writ a 
 great mass of learning collects itself. He who 
 knows what cases can be brought within each 
 formula knows the law of England. The body 
 of law has a skeleton, and that skeleton is the 
 system of writs. Thus our jurisprudence took 
 an exceedingly rigid and permanent shape ; it 
 became a commentary on formulas. It could
 
 48 Introduction to Law. 
 
 still grow and assimilate new matter, but it 
 could only do this by a process of interpreta- 
 tion which gradually found new, and not very 
 natural meanings for old phrases. . . . This 
 process of interpretation was too slow to keep 
 up with the course of social and economic 
 change, and the Chancery had to come to the 
 relief of the courts of law by making itself a 
 court of equity." ' 
 
 In the thirteenth century the chancellor 
 rarely performed any really judicial work, for 
 the issuing of writs was not strictly of that 
 character,' but in the fourteenth century peti- 
 tions of complainants, who alleged that they 
 could not get redress elsewhere, found their 
 way to him, though the wrongs of which they 
 complained might be those that were dealt 
 with by the Common law. As an excuse for 
 going to him, the king's chief minister, the 
 complainants alleged that their opponents were 
 powerful, and that they themselves Avere too 
 weak to get justice at Common law. Men had 
 come slowly to think that the chancellor had 
 a court of his own, though its jurisdiction was 
 the same in some respects as that of a Common 
 
 ' Professor F. W. Maitland, in Traill's Social Eng- 
 land, vol. ii., pp. 37, 38. See also Pollock and MaitlancVs 
 Jlistory of ICnglish Law, vol. i., pp. 173-175. 
 
 > Pollock and Maitland, History of English Law, 
 vol. i., pp. 129, i3<j, 175, 176,
 
 The Operation of Law. 49 
 
 law court. He was, however, gradually ex- 
 cluded from the field of the Common law, for 
 the fact that its delays were many and its juries 
 might be purchased was not to be allowed to 
 deprive it of jurisdiction over matters that 
 rightfully belonged to it. 
 
 But though the chancellor was gradually ex- 
 cluded from adjudicating upon Common law 
 cases, the fact that the Common law courts 
 were confined to the limited number of writs 
 made supplementary remedies necessary, and 
 the application of these remedies was under- 
 taken by the chancellor. The Chancery thus 
 came to have a jurisdiction of its own, estab- 
 lishing itself as a Court of Equity alongside 
 the Common law courts, and hearing causes in 
 which those courts had no remedy to offer. 
 The first great step in the assumption of such 
 jurisdiction was in compelling trustees to do 
 what in good conscience they ought to do. 
 In the second half of the fourteenth century 
 many of the great landowners were seeking to 
 evade certain burdens and restrictions imposed 
 upon the use of their land. To do this, they 
 conveyed the land to other persons with an 
 understanding as to the use and avails of the 
 land. But if a person to whom land was thus 
 conveyed with such an understanding, after- 
 ward refused to carry out the trust he had un- 
 dertaken, the Common law would not compel
 
 50 Introduction to Law. 
 
 him to do so, for by the Common law he had 
 become the legal owner. The chancellor, 
 however, would undertake to see that the 
 trustee did what he was honorably bound to 
 do, according to the arrangement between the 
 parties. From time to time the jurisdiction 
 of Chancery was enlarged until it succeeded in 
 covering many of the spots left bare by the 
 Common law.* 
 
 Present Scope of Equity. — Equity for a long 
 time remained more or less free with its reme- 
 dies. It did not consider itself very strictly 
 bound by its previous decisions, for in the six- 
 teenth century its decisions were very rarely 
 reported, and even in the seventeenth century 
 it was said that equity was a " roguish thing" 
 with no constant measure.' But a tendency 
 to follow its own precedents more and more 
 strictly became manifest, the decisions of the 
 court were more fully reported, and during the 
 chancellorship of Lord Eldon, in the first quar- 
 ter of the nineteenth century, the structure of 
 equity was fully formed. Thenceforward it 
 ceased to adopt new principles, and applied 
 only those it had previously established ; it 
 followed its own precedents with the same care 
 
 ' Professor F. W. Maithmd, in Tniill's Social Eng- 
 land, vol. ii., pp. 485-489. 
 
 '•' AullioriUes collected and quoLcd in loam's Legal 
 Jiiilgtncnt, Townshend's Anicr. ed., pp. 64, 66.
 
 The Operation of Law. 51 
 
 and respect that the Common law courts show 
 to the precedents of the Common law.' Equity- 
 to-day does not profess to supplement the 
 Common law in any other way or to any fur- 
 ther extent than it can find authority for in 
 equity precedents. 
 
 Remedies in Equity. — One of the equitable 
 remedies, the control of trustees, has already 
 been mentioned. Other examples of equity, 
 as distinguished from Common law jurisdic- 
 tion, appear in the difference between the Com- 
 mon law and equity remedies for breach of 
 contract and for injury to property. For a 
 breach of contract the remedy to be had in a 
 court of Common law is money compensation, 
 while a court of equity, in certain cases where 
 the money damages, which could have been 
 recovered in a court of Common law, would not 
 have been an adequate remedy, will compel 
 the person who has broken the contract to 
 specifically do the thing he had promised to 
 do. In a court of Common law the remedy 
 for injury to property is money compensation 
 for the damage actually done, while a court of 
 equity will grant an injunction to prevent the 
 commission of the injury. 
 
 Equity in the United States. — Our states that 
 adopted the English Common law also adopted 
 sooner or later, fully or partially, the English 
 ' Maine, Attcient Law, 3d Amer. ed., p. 66.
 
 52 Introduction to Law. 
 
 equity system, or else allowed equity jurisdic- 
 tion to their Common law courts.' 
 
 As we have seen, the ancient rigidity of the 
 Common law has been largely overcome, be- 
 cause with the great accumulation of Common 
 law precedents courts can make the Common 
 law elastic by the process of judicial interpreta- 
 tion, and also because there was established a 
 Court of Equity or Court of Chancery, which, 
 though it has now ceased to adopt new princi- 
 ples, can likewise be kept elastic by the proc- 
 ess of judicial interpretation of equity prece- 
 dents. 
 
 Legislation. — And there is yet a third way 
 by which the inadequacy of the Common law 
 is met — by legislation. This method is more 
 familiar. If a doctrine of the Common law 
 becomes objectionable, legislation can modify 
 or abolish the doctrine ; '^ if judicial interpreta- 
 tion and equity have still left a gap, legislation 
 can step in and fill it ; but in both instances, 
 of course, only so far as the federal and state 
 constitutions permit. Such an act is, how- 
 ever, rarely applicable to those cases which 
 arose before its enactment. A statute usually 
 takes effect from the date of its enactment, or 
 it may be provided that it shall go into effect 
 a designated time after its enactment ; but an 
 
 ' See State Courts, fiost , \>\\. 75, 76. 
 
 '' See the (iiiotatiou from Vale v. Dedercr, a/iie, p. 36.
 
 The Operation of Law. 53 
 
 act passed to affect prior cases, termed a retro- 
 spective or retroactive law, is usually discour- 
 aged by the courts when called upon to inter- 
 pret it, even if the act is not absolutely void 
 as having been expressly forbidden by the 
 constitution. The United States constitution 
 prohibits a state from passing any act that 
 shall impair the obligation of an existing con- 
 tract or any act that is ex post facto? Further 
 than this, some of the state constitutions go 
 beyond the federal constitution and prohibit 
 the passing of retrospective laws generally. 
 But where such laws are permitted, they are 
 merely allowed in order " to confirm rights 
 already existing and in furtherance of the 
 remedy by curing defects and adding to the 
 means of enforcing existing obligations. Such 
 statutes have been held valid when clearly just 
 and reasonable and conducive to the general 
 welfare, even though they might operate in a 
 degree upon existing rights, as a statute to 
 confirm former marriages defectively cele- 
 brated, or a sale of lands defectively made or 
 acknowledged." ^ 
 
 Codification, — Although we have been con- 
 
 ' An ex post facto law is a retrospective law relating 
 to criminal matters, and makes an act punishable in a 
 manner in which it was not punishable when it was com- 
 mitted. Calder v. Bttll, 3 Dallas, 386. 
 
 " Kent's Commentaries, vol. i., pp. 455, 456.
 
 54 Introduction to Law. 
 
 sidering legislation as a means of curing any 
 inadequacy of Common law remedies, it is 
 proper to add here that it is a serious subject 
 of controversy, whether legislation should not 
 be resorted to for the purpose of making the 
 case law more manageable. Because of the 
 immense accumulation of precedents, and the 
 ever-recurring necessity of disentangling from 
 them a rule or principle to be applied when- 
 ever a case is to be decided, it is being gener- 
 ally discussed whether it would not be better, 
 as far as possible, to extract and formulate, 
 once for all, in plain language the main rules 
 that are now embedded in previous cases, and 
 adding these rules to the present existing statu- 
 tory law, have the legislature enact the whole 
 in the form of well-arranged codes. The im- 
 portant ends sought in thus codifying the law 
 are " to get rid of a certain amount of anti- 
 quated material, mostly feudal, and the shells 
 of obsolete theories that still stick in the law, 
 to develop and further apply some sound and 
 valuable principles already admitted into the 
 law, but not yet carried out and applied as 
 fully and logically as they advantageously 
 might be, and to so arrange the whole as to 
 make it as easy as possible for persons who 
 have occasion to do so to find out what the 
 law is upon an\' given point."' Codification 
 ' 'rciry, Aiii^lo-.-hncriiiin Lwu', \k 607.
 
 The Operation of Law. 55 
 
 of the common law has not yet become gen- 
 eral, and it has strong opponents, who argue 
 that litigation would not thereby be decreased 
 substantially ; that if the rules are formulated 
 and fixed in statutes, much of the flexibility 
 of our law would be lost, and the gain in cer- 
 tainty would not be sufficient to compensate 
 for the loss in adaptability ; and, moreover, 
 the codified rules would themselves have to 
 undergo judicial interpretation/ 
 
 Adoption of the English Common Law in 
 the United States. — We have seen the method 
 in which the Common law grows and operates 
 in this country at the present time, and it has 
 been previously mentioned that the succession 
 of judicial records marking the line of its 
 growth now extends back for seven hundred 
 years. That which makes the continuity of 
 this line is the fact that each of our states^ has 
 adopted, as its Common law, the Common law 
 of England so far as it is suited to our circum- 
 stances. The English colonists in America 
 
 * California and some other states have undertaken to 
 codify the entire body of their law ; many states have 
 codified that part relating to procedure in the courts ; 
 New York has codified those parts relating to procedure 
 and crimes, and has recently adopted a code of the law 
 relating to negotiable instruments. 
 
 ' Except Louisiana, whose general or Common law is, 
 like that of the countries of continental Europe, embraced 
 in a code which follows the Roman law.
 
 56 Introduction to Law. 
 
 brought with them the Common law of Eng- 
 land as it existed at the time of their coloniza- 
 tion. It continued to be the Common law of 
 the colonie-s ; and in each of our states, 
 whether formed out of territory included in 
 the English colonies, or formed out of terri- 
 tory acquired otherwise than by English col- 
 onization, the courts have assumed or the con- 
 stitutions or legislatures have declared that the 
 English Common law is the Common law of the 
 state, so far as adapted to the needs of the 
 state. 
 
 Inasmuch as the Common law is subject to 
 change and growth, it may be asked of a 
 state : You adopted the Common law of Eng- 
 land, but you adopted it as it existed at what 
 period of its life ? Some authorities answer 
 that it was the Common law as it existed at 
 the time of the first permanent settlement in 
 1607 ; others, that the date is that of our in- 
 dependence in 1776 ; others, that each state 
 may fix the date for itself.' In any event, 
 since 1776 the Common law that is binding in 
 anyone of our states is not the Common law as it 
 is administered by English courts, but the 
 Common law as it was adoptctl by that state.' 
 
 Certain English statutes enacted prior to the 
 
 ' Ilainniond's lilackstonf, editor's nolo, vol. i., pj). 
 283, 284. 
 * Jb., p. 284.
 
 The Operation of Law. 57 
 
 Revolution are, so far as applicable to our con- 
 ditions, deemed to have been taken over into 
 and become a part of our Covnnon law. 
 
 Modification of the English Common Law 
 in the United States. — The reservation that 
 the English Common law is adopted by each 
 of our states only so far as it is applicable to 
 the circumstances of that state is an important 
 matter. It follows that the Common law of 
 one state is not that of another ; each has its 
 own Common law ; each has its own prece- 
 dents, and is not bound by the decisions of an- 
 other. The Common law as adopted by each 
 state is interpreted by that state for itself. 
 We have as many Common \3.w Jurisdictions (as 
 they are termed) as there are states and terri- 
 tories. In a new state the court of last resort 
 will, before it has accumulated many prece- 
 dents of its own, turn frequently to the de- 
 cisions in England and the older states for rea- 
 sons helpful to a conclusion in the settlement 
 of the many questions new to that court ; and 
 even in an older state, when a case comes up 
 presenting a new question (known as a " case 
 of first impression"), the court is likely to turn 
 for the same purpose to the precedents in 
 other jurisdictions. Such outside decisions are 
 a valuable aid, but nothing more, in helping a 
 court to declare wisely the Common law of its 
 own state ; they are not of binding authority.
 
 58 Introduction to Law. 
 
 Thus it happens that the Common law of one 
 state differs in many of its rules from the Com- 
 mon law of another state or of England, though 
 it remains in its main features and in the proc- 
 ess of its growth the same in all jurisdictions.' 
 The following illustration shows how the 
 Common law may vary in different jurisdic- 
 tions. There is an English Common law rule, 
 adopted by most of our states, that an owner 
 of cattle is liable, in any event, if they escape 
 and do damage. It is the duty of the owner 
 to keep them in or else pay for the injury they 
 do. But in Colorado, where the grazing in- 
 terests have hitherto been of vastly greater im- 
 portance than tilling the soil, the courts have 
 refused to adopt the English Common law 
 rule, since it is not suited to the conditions in 
 that state. There the duty is put upon the 
 farmer to fence in his crops, unless he is will- 
 ing to suffer damage from the herds, instead 
 
 ' The United States or federal courts have power to 
 act in cases involving tiie federal statutory law and 
 treaties, and such other powers as may have been allowed 
 to them vmder the limitations of the federal constitution. 
 As to the existence of a federal Common law, as distin- 
 guished from the Common law of the several states, and 
 as to its scope, a matter which has not yet been wholly 
 determined, reference may be had to Lee's " Is There a 
 Federal Common Law ?" {Northwestern Law Review, 
 vol. ii., p. 200), and Rand's " Supreme Court in Judicial 
 Legislation" {Harvard Law Review^ vol. viii., p. 328) 
 and to the authorities there cited.
 
 The Operation of Law. 59 
 
 of being upon the owner of cattle to keep his 
 cattle enclosed, unless he would subject him- 
 self to paying such damage as they may do if 
 they escape (^Morris v. Fraker, 5 Colo. 425) ; 
 and the court in a later case {Nuckolls v. Gaiif, 
 12 Colo. 361) says : " The case cited' holds 
 that in the particular mentioned, the principle 
 of the common law is inapplicable here. If 
 since that opinion was written (about ten years 
 ago) the circumstances and conditions have so 
 changed as to justify a return to the Common 
 law rule, the legislature should so declare. 
 Until such legislative declaration is made, we 
 shall apply to doctrine of stare decisis.''' So, 
 too, in some of our Western states, where 
 water is extensively used for mining and irri- 
 gation, the English Common law rules as to 
 water rights have been considerably modified, 
 as not being adapted to the conditions exist- 
 ing in those communities." 
 
 Historical Sketch of the Common Law in 
 England. — We have considered the manner in 
 which the Common law pursues its way in this 
 country at the present time ; we have followed 
 it back, and found that it came to us from 
 England ; and we will now, passing over into 
 England, notice briefly its course there down 
 
 ' Morris v. Fraker. 
 
 ' See Hoffman v. Stone, 7 Cal. 46, 48, and note in 43 
 American Decisions, 279.
 
 6o Introduction to Law. 
 
 to our colonial period, when it reached the 
 condition in which it came to us. 
 
 Origin of the Conunon Law ifi Custom. — The 
 Common law of England had its foundations 
 in the customs of the Germanic tribes that 
 accomplished the Anglo-Saxon conquest of 
 Britain. Any body of persons living together 
 in a community, no matter how primitive, 
 must of necessity sustain relations to one an- 
 other, and they must have some understand- 
 ings, silent or express, of such relations. In 
 early times it was custom that showed from 
 generation to generation what those under- 
 standings were. There is in man an instinct 
 to do an act because it has been done before, 
 and by repetition the act comes to seem the 
 natural and proper thing to do. 
 
 The Anglo-Saxon courts having been in 
 their character local courts of the people, 
 would naturally find in the local and long-re- 
 membered customs the measure for the admin- 
 istration of justice. Thus it was that that part 
 of the law of England which is not statutory 
 law came to be called " customary law ;" and 
 though at the present day wc do not conceive 
 of the Common law as being custom, yet even 
 down to Blackstonc's time the " Common law 
 of England" was thought of as being the 
 " common custom of the realm." The term 
 " Common law" did not come into frequent
 
 The Operation of Law. 6i 
 
 use until the time of Edward I.' For exam- 
 ple, in the charter of Henry I., at his corona- 
 tion, he says : " And all the evil customs by 
 which the realm of England was unjustly op- 
 pressed will I take away, which evil customs 
 I partly set down here." 
 
 The King s Court and the Customary Law. — 
 After the Norman conquest of England in the 
 eleventh century, the country became covered 
 with small local courts, for, besides the old 
 English local courts which still continued to 
 exist, the lords held courts of their own, known 
 as courts baron ; " the great old tribal customs 
 were breaking up into multitudinous petty 
 customs." ' But with the reign of Henry H., 
 in the latter half of the twelfth century, began 
 the process whereby the king's court — admin- 
 istering justice by him or in his name— was to 
 overcome and gather to itself the jurisdiction 
 scattered among local courts. Prior to the 
 time of Henry H. the king's court had been 
 chiefly a court for great men or great causes, 
 but he opened it to all his subjects. He made 
 it a court of professional judges, and sent them 
 frequently over the country to administer jus- 
 tice in his name. He issued ordinances which 
 were known as assises, for their instruction, 
 and these assizes introduced new remedies 
 
 ' Pollock and Maitland, History of Eiigltsh Law, 
 vol. i., p. 156. * Id., p. 84.
 
 62 Introduction to Law. 
 
 which worked themselves into the fabric of 
 the Common law.' With the extension of his 
 judicial functions, there was developed the 
 scheme of writs, by which the king's justice 
 was invoked. The writ was a mandate, in the 
 name of the king, which issued at the instance 
 of a complainant to bring his adversary into 
 court. Various kinds of writs were kept in 
 hand for various kinds of cases, and sold to 
 complainants, and by the end of the reign of 
 Henry II. the custom of the king's court — the 
 early Common law — had begun to assume the 
 form of the judges' commentary upon these 
 writs," a matter that in another connection has 
 already been mentioned.' 
 
 By the beginning of the reign of Edward I., 
 in the second half of the thirteenth century, 
 the result of the expansion of the king's court 
 upon the local courts had been the establish- 
 ment of the English Common law, out of such 
 customs as were common to the realm, as dis- 
 tinguished from such customs as were merely 
 local.* " There is reason to think, as a matter 
 of history, that in the critical period when the 
 
 ' Professor F. W. Maitland, in Traill's Social Eng- 
 land, vol. i., pp. 408, 409. 
 
 * Pollock and Maitland, Jlisiory of English Law, 
 vol. i., pp. 129, 130. 
 
 * Ante, pp. 46, 47. 
 
 * Greer, " Custom in the Common Law," Law Quay 
 terly Review, vol. ix., p. 164.
 
 The Operation of Law. 63 
 
 foundations of English law were assured, from 
 the reign of Henry II. to that of Edward I., 
 the king's judges had no small power of de- 
 termining what customs should prevail and be 
 received as the * custom of the realm,' and 
 that they exercised it freely." ' 
 
 At the end of this critical period it is said 
 that " on the whole, the local variations from 
 the law of the land are of no great moment. . . . 
 The strong central power has quietly subdued 
 all things unto itself. No English county ever 
 rebels for the maintenance of its customary 
 law." ^ From the time of Edward I. the king's 
 court was differentiated into three courts that 
 administered the Common law — the King's 
 Bench, the Common Bench or Common Pleas, 
 and the Exchequer. These courts continued 
 their separate existence until by acts of Parlia- 
 ment, in 1873 and 1875, they were, together 
 with all the other superior courts of law and 
 equity in England, united into one Supreme 
 Court of Judicature. 
 
 Present Relation of Lazv to Custom. — Just 
 here we may turn aside to ask what has been 
 the relation of custom to the Common law 
 since the earlier period of which we have been 
 speaking. The question may be answered by 
 
 ' Pollock, First Book of Jurisprudence, pp. 240, 241. 
 ' See Pollock and Maitland, History of Efiglish Law, 
 vol. i,, pp. 163-165.
 
 64 Introduction to Law. 
 
 recurring to what has previously been said 
 about the process and purpose of judicial in- 
 terpretation, and by adding to what was there 
 said the following quotation from a tribute 
 recently paid by James C. Carter, a leader of 
 the New York bar, to a former chief judge of 
 the New York Court of Appeals : " His great 
 mastery of the reasons upon which the law is 
 founded and his vast experience have enabled 
 him to perceive and appreciate the almost in- 
 sensible changes which are constantly going 
 on in the modes of business, customs of life, 
 and the moral standards of men, which really 
 make the law ; to catch them at the right point 
 and give them life and efficacy by adapting 
 the law to them." ' 
 
 Besides such continual, though not always 
 conscious adjustment of law to custom, there 
 are two important instances in comparatively 
 recent times, of the enlargement of the law by 
 conscious and substantial appropriation from 
 particular bodies of customs. These instances 
 are the recognition and adoption of merchants' 
 customs by the English Common law in the 
 eighteenth century, and the incorporation of 
 miners' customs into the law of California in 
 this century. These mining customs, by rea- 
 son of the fact that the mining laws of Cali- 
 fornia were generally adopted by our other 
 ' Albany Law Journal, vol. Ivi., p. 445.
 
 The Operation of Laiv. 65 
 
 Western mining states and territories, and that 
 the miners' customs were recognized and al- 
 lowed by act of Congress in 1866, became the 
 basis of our American mining law. Judge 
 Sanderson, in his opinion in Morton v. The 
 Solanibo Mining Co., 26 Cal. 527, describes 
 the origin and operation of these customs : 
 " [Before 185 1] there had sprung up throughout 
 the mining regions of the state local customs 
 and usages, by which persons engaged in mining 
 pursuits were governed in the acquisition, use, 
 forfeiture, or loss of the ground. . . . These 
 customs differed in different localities, and 
 varied to a greater or less extent according to 
 the character of the mines. . . . They were 
 few, plain, and simple, and understood by those 
 Avith whom they originated. . . . These 
 usages and customs were the fruit of the times 
 and demanded by the necessities of com- 
 munities, who, though living under the Com- 
 mon law, could find therein no clear and well- 
 defined rules for their guidance applicable to 
 the new conditions by which they were sur- 
 rounded, but were forced to depend upon re- 
 mote analogies of doubtful application and 
 unsatisfactory results, . . . These customs 
 and usages have in progress of time become 
 more general and uniform, and in their leading 
 features are now" the same throughout the 
 1 1864.
 
 66 Introduction to Law. 
 
 mining regions of the state." The California 
 Practice Act of 185 1 had recognized these cus- 
 toms and had directed their adoption as law 
 wherever not in conflict with the constitution 
 or laws of the state. In Harvey v. Ryan, 
 42 Cal. 626, it is said that these customs are 
 none the less effective when they are unre- 
 corded, and that the question merely is, what 
 is the custom ? 
 
 Develop})ient of the Doctrine of Stare Decisis. 
 — Returning now to a consideration of the 
 course of the Common law in England, we find 
 in the reign of Edward I. the indications of a 
 feature which was to become the most striking 
 characteristic of our Common law to-day — 
 pleaders and judges had begun to cite previous 
 cases.' But not then, nor for a long time 
 afterward, did a court, as is the practice nowa- 
 days, consider previous cases as of binding 
 authority, and resort to them at once for some 
 rule to apply to the case in hand. Our usual 
 modern way is to revert, first of all, to previ- 
 ous cases as binding authorities, and then, per- 
 haps, supplement that argument with one " on 
 the principle of the thing," for the purpose of 
 
 ' Mr. Harwood, editor and translator of the Year-Books, 
 says in his preface to the volume containing the years 
 34 and 35 of Edward I., that " a tendency to rely on pre- 
 vious cases appears in this volume. There are more than 
 a dozen instances of reference to previous cases."
 
 The Operation of Law. 67 
 
 fortifying the authorities cited as precedents. 
 Our point of view in these days is indicated 
 by a statement of this sort : " If we turn from 
 this examination of adjudged cases, which 
 largely preponderate in favor of the doctrine 
 ... to look at the question in the light of 
 reason, that doctrine commends itself to us 
 still more strongly." ' But we are to think of 
 the earlier method as being rather a discussion 
 of the principle of the thing, the argument 
 being supplemented, though it seems but in- 
 frequently, by reference to previous cases as 
 illustrations of the practical working of the 
 principle." 
 
 The courts did not, perhaps, think it neces- 
 sary that they should be reminded of previous 
 decisions. The Common law was early given 
 into the keeping of a small body of judges and 
 lawyers, who cherished it as something among 
 themselves alone, and only to be understood 
 by them. Its traditions were passed down 
 from generation to generation, and a knowl- 
 edge of it was only to be acquired by long 
 years of novitiate. " The English Common 
 law was tough, one of the toughest things 
 
 ' Love joy v. Murray, 3 Wall, i, 16. 
 
 ' See Pollock and Maitland, History of English Law, 
 vol. i., pp. 162, 163 ; Markby, Elements of Law, 5th ed., 
 § 91 ; Reeves, History of English Law, Finlason's ed., 
 Amer. issue, 1880, vol. iv., pp. 154, 155 ; Maitland's ed. 
 of Bracton's Note-Book, Introd., p. 11.
 
 68 Introduction to Law. 
 
 ever made."' Those who knew it, knew it 
 thoroughly, but knew nothing else ; and to 
 those thus saturated with its spirit, reason, 
 and methods, the citation of previous cases 
 was not of the prime importance that it is to- 
 day.' 
 
 Besides, it was not so easy to cite prece- 
 dents. The only Reports before the latter 
 half of the sixteenth century were the Year- 
 Books, of which the first comes from the reign 
 of Edward I. and the last from the reign of 
 Henry VIII. The Year-Books contain a rec- 
 ord of the oral discussion of the points in- 
 volved in the case, with the decision, but in 
 them the citation of previous cases is infre- 
 quent.* In the sixteenth century the unoffi- 
 cial publication of Reports by individuals was 
 begun,* but many of the Reports of that period 
 were of doubtful accuracy, and some, perhaps, 
 
 * Professor F. W. Maitland, in Traill's Social England, 
 vol. ii., p. 481. 
 
 ''■ Ibid., pp. 479-481 ; Pollock and Maitland, History of 
 English Law, vol. i., p. 163 ; Maine, Ancient Laiv, 
 3d Amer. ed., pp. 12, 13 ; Markby, Elemetits of the 
 Law, 5th ed., § 90. 
 
 * It has been pointed out that probably in the time of 
 the later Year-Books the citation and influence of pre- 
 vioiis cases was more usual than those reports indicate. 
 Markby, Elements of Law, stii ed., § 90. 
 
 * At the present time the English Reports are published 
 under the auspices of an association of lawyers and with 
 the supervision of eminent members of the profession.
 
 The Operation of Law. 69 
 
 were wholly unauthenticated.' However, from 
 the end of the sixteenth century the practice 
 of citing cases became more common, and at 
 least by Blackstone's time, in the last half of 
 the eighteenth century, courts had gradually 
 come to look upon previous decisions as we do 
 to-day ; ' the Common law had become case 
 law, and the courts regarded the previous cases 
 as of binding authority, and not merely as il- 
 lustrations of the custom of the court.' The 
 Common law now had reached the period when 
 it was to progress by the judicial interpretation 
 of previous cases regarded as of binding au- 
 thority.* 
 
 Influence of Roman Law in England. — Two 
 great systems of law prevail in the civilized 
 world : the English Common law and equity 
 in Great Britain (except Scotland), in the 
 
 1 Wallace, The Rep^orters, in his " Preliminary Re- 
 marks." He suggests that as a means of escape from 
 following precedents, the judges may sometimes have 
 unfairly criticised and refused to allow the value of some 
 of the cases in these Reports. 
 
 ** Blackstone's Commentaries, Book I., pp. 70, 71. 
 
 ^ The Reports that had been published down to Black- 
 stone's day were, as we look at them now, comparatively 
 few. Down to 1776 the total number of English Reports, 
 both law and equitj', would not much exceed 150 vol- 
 umes. Wallace, The Reporters, in his " Preliminary 
 Remarks. ' ' 
 
 * See Appendix for examples of English law reporting 
 at different periods.
 
 JO Introduction to Law. 
 
 United States (except Louisiana),' and gener- 
 ally in the numerous English colonies scattered 
 over the globe ; the Roman or civil law "^ in 
 the other countries of Western Europe and in 
 the countries colonized by them. In conclud- 
 ing this sketch of the course of English law, 
 it is, therefore, well to note the influence that 
 the Roman law has had upon Enghsh law. In 
 speaking of the Roman law, one usually has in 
 mind that law as it was compiled into the 
 Code, Institutes, Novels, and Digest or Pan- 
 dects, under the auspices of the Emperor Jus- 
 tinian ; but in considering its influence, we 
 must distinguish between that of a direct kind 
 which comes from a study of this compilation, 
 and such indirect influence as comes from the 
 adoption of customs or institutions in which 
 the Roman law is active. Its traceable eff"ects 
 upon English law do not begin until after the 
 Anglo-Saxon Conquest. During the Anglo- 
 Saxon period its indirect influence was opera- 
 tive, and in two ways : first, through the in- 
 troduction of the Roman Church, bringing 
 with it the elements of what in course of time 
 was to develop into the system of canon 
 or church law ; second, and at a later period, 
 
 ' The basis of the law in Scotland and Louisiana is the 
 civil law. 
 
 ' Civil law is a term also used in another sense, to dis- 
 tinguish that part of the law which is not criminal law.
 
 The Operation of Law. yi 
 
 through the intercourse of the English princes 
 with the Prankish kings, whereby Roman 
 materials that had existed among the Franks 
 were brought into England.' 
 
 After the Norman Conquest the Roman in- 
 fluence continued. The Normans adopted the 
 official machinery of the Prankish Govern- 
 ment, including such Roman elements as had 
 been taken up by the Pranks, chiefly matters 
 of procedure. In the twelfth and thirteenth 
 centuries there was a revival of interest in 
 Roman law, and a direct study of the Justinian 
 compilation, a fact which for about a century 
 worked some modifications in English law. 
 The greatest effects, however, came through 
 the Roman Church and its clergy. The 
 Church " being a Roman institution lived 
 Roman law." She dissuaded her members 
 from going to law. The Christian emperors 
 had allowed her certain judicial powers ; she 
 had her ecclesiastical courts ; there grew up a 
 system of canon law administered in them ; 
 and she had such courts and law with her in 
 England. In the twelfth century the relation 
 of the canon law to Roman law was very close, 
 and from the latter the canon law had bor- 
 rowed its form, language, spirit, procedure, 
 and many maxims. In the twelfth and thir- 
 
 ' Pollock and Maitland, History of English Law, vol. 
 i.. Introduction.
 
 72 Introduction to Laiv. 
 
 teenth centuries the king's justices were also 
 prelates of the Church, and must have had an 
 acquaintance with the methods and general 
 principles of the canon law. At that time " it 
 is by ' popish clergymen ' that our English 
 Common law is converted from a rude mass of 
 customs into an articulate system, and when 
 the ' popish clergymen,' yielding at last to 
 the Pope's commands, no longer sit as the 
 principal justices of the king's court, the golden 
 age of the Common law is over. . . , English 
 law, more especially the English law of civil 
 procedure, was rationalized under the influence 
 of the canon law," ' Before the end of the 
 reign of Henry III. most of the king's justices 
 were no longer clergymen, and by the four- 
 teenth century the Common law judges were 
 probably ignorant of the canon and Roman 
 law.' 
 
 As to the ecclesiastical courts, with their 
 canon law, they continue to exist in Eng- 
 land to the present day. Formerly they had 
 jurisdiction not merely over matters of what 
 we would consider strictly ecclesiastical inter- 
 est, but also over marriage and divorce, pro- 
 bate of wills, and administration of goods left 
 by persons dying intestate. They are now, 
 
 ' Pollock and Mailland, Hislory of linglish Law, 
 vol. i., pp. 112, 113. 
 ' Ibid., Introduction, and pp. 88-96, 11 1, 184.
 
 The Operation of Law. T}^ 
 
 however, confined to affairs of a purely eccle- 
 siastical character. In 1857 their jurisdiction 
 in regard to wills, and personal property of 
 intestates, was given to a new court of Probate ; 
 and their jurisdiction over divorce was given to 
 a new court for Divorce Causes. Ecclesiastical 
 courts form no part of the judicial establish- 
 ment in the United States. 
 
 Although after the thirteenth century no 
 other wave of Roman influence affected the 
 law administered in the Common law courts, 
 the Roman system did, however, affect two 
 other jurisdictions in England — the Admiralty 
 courts and the Court of Equity. Both of these 
 jurisdictions adopted the reason, spirit, and 
 procedure of the civil law. The law adminis- 
 tered by Courts of Admiralty is the Maritinie 
 laiv, which may be called a common law of 
 the seas. Its rules and principles may be 
 found in several codes compiled for various 
 seagoing peoples,' and in England and the 
 United States these rules and principles have 
 worked themselves into the series of decisions 
 rendered by admiralty courts.'' As to the in- 
 
 ' The codes are those of Rhodes, Amalfi, Oleron, 
 Wisby, the Hanseatic towns, and the codes known as the 
 Consolato del Mare, the French marine ordinance of 1681, 
 and the Black Book of the Admiralty. 
 
 '■" In the United States admiralty is a matter of federal 
 jurisdiction, though the state courts have concurrent ju- 
 risdiction over some cases of a maritime nature.
 
 74 Introduction to Law. 
 
 fluence of the Roman system upon the Court 
 of Equity, there is some diversity of opinion, 
 but it is agreed that its procedure and a num- 
 ber of its rules were derived from that system. 
 All of the chancellors down to the time of 
 Henry VIII. were ecclesiastics, and it would 
 not be strange if, before the period when the 
 Court of Equity became more strictly bound 
 by precedents, any chancellor who was familiar 
 with either the Roman or canon law did, upon 
 occasion, avail himself of that knowledge. 
 But a recent authority thinks that the influence 
 did not go much beyond giving the procedure 
 and some maxims : "So far as we can now 
 see, the chancellors seem to get most of their 
 dominant ideas from the Common law. They 
 imitate the Common law whenever they can, 
 and depart from it reluctantly at the call of 
 natural justice and common honesty." ' 
 
 To sum up : We have now discussed briefly 
 (i) how the unenacted law operates in this 
 country to-day ; (2) how it came to us from 
 England ; and (3) the course of its growth 
 there, and in what manner it was influenced 
 by that other great system of law which shares 
 with it the dominion of the civilized world. 
 
 ' Professor F. W. Maitland, in Traill's Social Eng- 
 land, vol. ii., p. 488.
 
 IV. 
 
 COURTS AND PROCEDURE. 
 
 The Courts. — In describing the boundaries 
 of law, it was said that those rules of which 
 the state will compel the observance constitute 
 the law ; and it was added that the state estab- 
 lishes courts for the purpose of administering 
 those rules, and provides methods for enforc- 
 ing the orders and judgments of the courts. 
 
 The State Courts. — The ordinary courts of 
 the several states of the Union may differ in 
 name, in number, and in the powers they 
 exercise. But although such differences exist, 
 almost every state in establishing its courts 
 provides : 
 
 1. A high court of appeals for the review of 
 cases and the correction of the errors of lower 
 courts. 
 
 2. A court or courts having general, original 
 jurisdiction over Common law cases. 
 
 3. A court or courts having general, original 
 jurisdiction over equity cases. 
 
 4. A court or courts having original jurisdic- 
 tion in all probate matters — i.e., the settle- 
 ment of the estates of deceased persons.
 
 76 
 
 Introduction to Law. 
 
 5. Courts for the adjudication of minor crim- 
 inal cases and civil cases involving small 
 amounts. 
 
 This does not mean that a state establishes 
 separate courts for each of the five several pur- 
 poses just given ; it means that the state has 
 those general purposes in view in establishing 
 its courts. The following chart will show, by- 
 way of illustration, the courts whereby, in 
 some of the states, the purposes above men- 
 tioned are subserved.' 
 
 
 I. Highest 
 
 Appellate 
 
 Court. 
 
 2. Court of 
 General, 
 Original, 
 Common 
 
 Law Juris- 
 diction. 
 
 3. Court of 
 General, 
 Original, 
 Equity 
 Jurisdic- 
 tion. 
 
 4. Court of 
 Original 
 Probate 
 Jurisdic- 
 tion. 
 
 5. Court 
 
 for Minor 
 
 Cases. 
 
 California. 
 
 Supreme 
 Court. 
 
 Superior 
 Court. 
 
 Superior 
 Court. 
 
 Superior 
 Court. 
 
 Justice's 
 Court. 
 
 Kansas — 
 
 Supreme 
 Court. 
 
 District 
 Court. 
 
 District 
 Court. 
 
 Probate 
 Court. 
 
 Justice's 
 Court. 
 
 Maryland . 
 
 Court of 
 Appeals. 
 
 Circuit 
 Court. 
 
 Circuit 
 Court. 
 
 Orphans' 
 Court. 
 
 Justice's 
 Court. 
 
 Mississippi 
 
 Supreme 
 Court. 
 
 Circuit 
 Court. 
 
 Court of 
 Chancery. 
 
 Court of 
 Chancery. 
 
 Justice's 
 Court. 
 
 New York. 
 
 Court of 
 Appeals. 
 
 Supreme 
 Court. 
 
 Supreme 
 Court. 
 
 Surro- 
 gate's 
 Court. 
 
 Crimina/: 
 Court of 
 Special 
 Sessions. 
 
 Civil: 
 Justice's 
 Court. 
 
 A chart for all the states is given in Stimson's Ameri- 
 cati Statute Law, vol. i., p. 114.
 
 Courts and Procedure. "jj 
 
 Besides these typical courts which appear in 
 the chart, there may be in any state additional 
 courts having jurisdiction limited as to locality 
 or as to the kind of matters that can be adju- 
 dicated in them. For example, in New York 
 there are, among other additional courts, an 
 intermediate court of appeals, called the Ap- 
 pellate Division of the Supreme Court, and a 
 County Court for each county except New 
 York County. 
 
 The Federal Courts. — The courts of the 
 United States are the Supreme Court, a Cir- 
 cuit Court of Appeals for each of the nine fed- 
 eral judicial circuits into which the country is 
 divided, and a Circuit Court and a District 
 Court for each of the numerous federal judicial 
 districts into which the country is divided.' 
 The Supreme Court is the highest federal court 
 of appeals for the correction of errors, the Cir- 
 cuit Courts of Appeals are intermediate appel- 
 late courts, and the Circuit Courts and District 
 Courts are courts of original, but limited juris- 
 diction.' 
 
 The English Courts. — In England there are 
 two courts of final appeal, the House of Lords 
 
 ' There are at present seventy such districts. 
 
 ' The best book for students upon the subject of the 
 jurisdiction of the federal courts is the Jurisdiction, 
 Practice, and Peculiar Jurisprudetice of the Courts 
 of the United States, by B. R. Curtis. 2d ed., i8g6. 
 (Students' Series.)
 
 78 Introduction to Law. 
 
 and the Judicial Committee of the Privy Coun- 
 cil, each having its own appellate jurisdiction. 
 The other ordinary superior courts are consoli- 
 dated into one Supreme Court of Judicature, 
 consisting of two great divisions, the Court of 
 Appeal and the High Court of Justice. The 
 Court of Appeal is an intermediate appellate 
 court, the High Court of Justice is the court 
 of general, original jurisdiction in Common 
 law, equity, probate, divorce, and admiralty 
 matters. The High Court of Justice consists 
 of three divisions — the Queen's Bench Divi- 
 sion, the Chancery Division, and the Probate, 
 Divorce, and Admiralty Division. Besides the 
 above superior courts, there are also County 
 Courts and other courts of inferior jurisdiction.' 
 Procedure. — It is evident that the proceed- 
 ings of the courts and of all those charged with 
 the execution of its mandates must be orderly 
 and regular. It is for this reason that there 
 exist rules of Procedure, which constitute a 
 large part of the bulk of the law." 
 
 ■ See also ujion the English courts ante, pp. 63, 73. An 
 excellent account of the English courts is given in Anson's 
 Laiv and Custojn of the Constitution, Part II., 2tl ed. 
 (1896), pp. 431-480. 
 
 ' It has been stated that almost one half of W\q points 
 decided in the cases digested in the annual General 
 Digest for 1893 were "points of procedure or other 
 matters not involving the merits of the controversy." 
 Reports of the American Bar Association for 1894, pp. 
 366, 367.
 
 Courts and Procedure. 79 
 
 The general principles which underiie the 
 rules of Procedure are : 
 
 1. That, assuming there is some legal remedy 
 open to the complainant, the remedy must be 
 sought in a court which, by law, is given power 
 to administer the remedy. 
 
 2. That the court which has power to admin- 
 ister the remedy must acquire jurisdiction over 
 the parties to the controversy in a proper man- 
 ner. The jurisdiction of a court over a com- 
 plaining party is obtained by his resorting to 
 the court for a legal remedy ; the jurisdiction 
 over the defendant is obtained by reaching out 
 and bringing him into the court by a lawful 
 mandate issued against him by the court. 
 
 3. That the precise points in controversy 
 must be ascertained before a decision can be 
 given. It may be that only the facts are in 
 dispute, or it may be that the parties are 
 agreed upon the facts, and that the only mat- 
 ter of difference is as to the rule of law which 
 is properly applicable to the facts. At the 
 beginning of most kinds of legal contention 
 the parties, through their attorneys, arrive at 
 the exact point at issue by a method of state- 
 ment and counter-statement, technically known 
 as Pleading. And the issue thus reached will 
 be either an issue of fact or an issue of law. 
 
 4. That judgment must be rendered. If the 
 issue is one as to the facts, the truth of the
 
 8o Introduction to Lam. 
 
 matter is, in actions at Common law, ordinarily 
 left for a jury to decide upon evidence sub- 
 mitted to them, and upon the verdict of the 
 jury a judgment is rendered by the court. In 
 equity cases the questions of fact are decided 
 by the court, and not by a jury. But what is 
 to be considered proper evidence is to be de- 
 cided by the court in accordance with existing 
 legal rules of Evidaice. If the issue is one of 
 law, the court is to administer the law prop- 
 erly applicable, and to render judgment ac- 
 cordingly. From the decisions of lower courts 
 various provisions must be made for appeals 
 to higher courts in order that the finally de- 
 cisive judgment may not rest upon errors. 
 This system of appeals results in giving us the 
 final authoritative declarations of the law by 
 courts of last resort, whose opinions are to be 
 found in the Reports. 
 
 5. That there must be provision for the en- 
 forcement of the orders and judgments of the 
 courts. 
 
 The place of Procedure in the scheme of the 
 law has been thus described : " Law defines 
 the rights which it will aid, and specifies the 
 way in which it will aid them. So far as it de- 
 fines, . . . it is ' Substantive Law. ' So far as 
 it provides a method of aiding and protecting, 
 it is ' Adjective Law ' or Procedure." ' 
 
 ' \\o\\wa.(S., Jioisprudcmc, 5th eel., p. 77.
 
 APPENDIX. 
 
 The following cases are brief examples of 
 the progress of law reporting from the time 
 when precedents were rarely cited to the time 
 when they had come to be regarded as binding 
 authorities. The first is from Horwood's 
 edition of the Year-Books of 34 and 35 Edward 
 I., p. 512, the date of the case being the year 
 1307. 
 
 " Walter le Gleuman and John le Gleuman 
 purchased, etc., jointly, etc., and then jointly 
 alienated and died ; and after their deaths 
 Alice, etc., the wife of Walter and Agnes, 
 etc., the wife of John brought their writ, etc. 
 
 Hedone (to each plaintiff separately). Your 
 
 husband, etc., was never solely seised, etc., so 
 that, etc., but jointly, etc.; and he disclosed 
 
 the facts of the case. Lanfar. You have 
 
 acknowledged that he was seised in his de- 
 mesne as of fee, etc., judgment, etc.; and as 
 to Agnes, in order better to affirm her estate, 
 we tell you that John her husband survived, 
 
 etc. Mallore. According to what he says, 
 
 they had previously jointly alienated ; and if 
 that be true, John was not solely seised of any-
 
 82 Appendix. 
 
 thing. And he said to Lanfar, Is it as he 
 
 says or not ? Lanfar could not deny this. 
 
 Mallore (having consulted Hengham 
 
 and Staunton). The court adjudges that 
 neither one nor the other takes anything, etc." 
 
 The second example, Belly v. A Igor, is taken 
 from Dyers Reports, 206a, the date of the case 
 being the year 1561. A case from this re- 
 porter is selected because his are among the 
 earliest of the Reports which succeeded the 
 Year-Books. 
 
 " Note, That this Term an outlawry of one 
 William A Igor at the suit of William Belly and 
 others was reversed on good consideration in 
 the Bench without writ of error, because these 
 words usually put in the writ of proclamation, 
 s. ' made upon three several elays whereof one 
 proclamation,' etc., were omitted by the negli- 
 gence of the exigenter, who was Scrogges and 
 his clerk, whereby the writ did not bear any 
 sense according to the intent of the statute 
 6 // 8, and a precedent of reversal was shewn 
 — namely H 8. Rotnlo was seen, because the 
 writ of proclamation did not make mention 
 to what sheriff the defendant should render 
 himself, etc. See East. 4." 
 
 The third example, Rex v. Beaeh, selected 
 from Cowper s Reports, p. 229, was decided in
 
 Appendix. 83 
 
 1774, and brings us to the period when our 
 present method and purpose of citing preced- 
 ing cases had been established. 
 
 " The defendant in this case had been con- 
 victed of perjury in an affidavit. Upon shew- 
 ing cause why the judgment should not be 
 arrested, exception was taken by Mr. Dunning 
 and Mr. Bullcr, in support of the rule, that 
 there appeared a material variance between 
 the indictment and the affidavit ; for in the 
 affidavit the defendant swore, that ' he under- 
 stood and believed,' etc., whereas the assign- 
 ment of the perjury in the indictment was ' that 
 he had falsely sworn that he under^'ood and 
 believed,' etc., omitting the letter s. 
 
 " In support of this exception it was insisted 
 that this being a variance in the material part 
 of the charge — namely, in the assignment of 
 the perjury itself, was fatal, and could not be 
 cured by verdict ; and cited Queen v. Drake, 
 
 2 Salk. 660. Hutton, 56 ; Cro. Jac. 133 ; 
 
 5 Rep. 45 ; 2 Lord Rayin. 1224. Cur advisare 
 vult. 
 
 " Lord Mansfield now delivered the unani- 
 mous opinion of the court as follows : ' This was 
 a motion in arrest of judgment on an indictment 
 for perjury in an affidavit, upon the ground of a 
 material variance between the affidavit and the 
 indictment, the letter s being left out in the 
 word understood ; and it comes before the
 
 84 Appendix. 
 
 court after the jury have read it " understood." 
 We have looked into all the cases upon the 
 subject, some of which go to a great degree of 
 nicety indeed, particularly the case in Hutton 
 56, where the word indicari was written for in- 
 diciari f whereas it should have been written 
 with an abbreviation indicari ; but that case is 
 shaken by the doctrine laid down in 2 Hawk. 
 239. The true distinction seems to be taken 
 in the case of the Qiiccn v, Drake, 2 Salk. 660, 
 which is this : that ivhcre the omission or addition 
 of a letter does not ehange the ivord, so as to make 
 it another zvord, the variance is not material. To 
 be sure, a greater strictness is required in crim- 
 inal prosecutions than in civil cases, and in the 
 former a defendant is allowed to take advan- 
 tage of nicer exceptions. But this is a case 
 where the matter has been fairly tried, and 
 where the omission of the letter s certainly 
 does not change the word. Therefore we are 
 all of opinion that the jury were very right in 
 reading it " understood.' " 
 
 *' Rule for arresting the judgment dis- 
 charged."
 
 INDEX. 
 
 
 
 
 PAGE 
 
 Abbreviations i6 
 
 Adjective law 
 
 
 
 
 
 . 80 
 
 Admiralty 
 
 
 
 
 
 . 73 
 
 American series of Reports 
 
 
 
 
 
 . 17 
 
 Appeals 
 
 
 
 
 
 . 80 
 
 Appellate courts . 
 
 
 
 
 
 9. 43. 75 
 
 Bibliography, legal 
 
 
 
 
 
 • 25 
 
 Blackstone's Commentaries 
 
 
 
 
 
 . 21 
 
 Canon law 
 
 
 
 
 
 . 70 
 
 Case law 
 
 
 
 
 
 12, 13 
 
 Cases, as precedents 
 
 
 
 12 
 
 , 27, 
 
 35, 38, 66 
 
 distinguishing . 
 
 
 
 
 
 . 42 
 
 doctrine of. 
 
 
 
 
 
 . 41 
 
 form . 
 
 
 
 
 
 • 13 
 
 studying . 
 
 
 
 
 
 . 40 
 
 Certainty .... 
 
 
 
 
 
 . 36 
 
 Chancery 
 
 
 
 
 
 46, 76 
 
 Citations 
 
 
 
 
 
 16, 25 
 
 Civil law 
 
 
 
 
 
 . 70 
 
 Codification . 
 
 
 
 
 
 • 53 
 
 Common law, adaptability . 
 
 
 
 
 
 • 29 
 
 and custom 
 
 
 
 
 
 12, 60 
 
 and statutes 
 
 
 
 
 
 12, 13, 35 
 
 federal 
 
 
 
 
 
 . 58 
 
 growth 
 
 
 
 
 
 . 27 
 
 in England 
 
 
 
 
 
 . 59 
 
 in the United States 
 
 
 
 . 55 
 
 influence of Roman law , 
 
 
 . 69 
 
 Compiled laws 
 
 
 
 
 • 
 
 . 10
 
 86 
 
 Index. 
 
 Constitutionality . 
 Courts, English . 
 
 federal 
 
 state 
 Custom and Common law 
 
 Dicta .... 
 
 Dictionaries, law . 
 Digests .... 
 Distinguishing cases . 
 Divorce court in England 
 Doctrine of a case . 
 
 Ecclesiastical courts 
 England, common law . 
 courts . 
 equity . 
 Equity, historical sketch 
 
 in the United States 
 
 influence of Roman law 
 
 present scope 
 
 remedies , 
 Errors, correction of 
 Evidence 
 Ex post facto law . 
 
 Federal common law 
 
 courts 
 
 statutes 
 Fiction, legal . 
 
 General statutes 
 Growth of law 
 
 International law 
 Interpretation of precedents 
 
 of statutes 
 Issues .... 
 
 PAGB 
 12 
 
 77 
 
 77 
 
 75 
 
 12, 6o 
 
 41 
 25 
 
 i8 
 
 44 
 
 73 
 41 
 
 1'- 
 5) 
 77 
 
 46, 78 
 46 
 
 51, 75.76 
 73 
 50 
 51 
 
 43. 80 
 80 
 53 
 
 58 
 
 77 
 
 9 
 
 45 
 
 10 
 6, 27 
 
 3 
 
 38 
 
 12, 13 
 
 • 79
 
 Index. 87 
 
 PAGE 
 
 Judges, function 42 
 
 Judicial interpretation ....... 38 
 
 Justice's court 7^ 
 
 Kent's Commentaries ....... 22 
 
 Law, adjective ........ 80 
 
 and morals ........ 4 
 
 bibliography ........ 25 
 
 books 8 
 
 canon ......... 70 
 
 case . 12, 13 
 
 civil 70 
 
 customary ........ 12 
 
 definitions ........ I 
 
 ecclesiastical ........ 70 
 
 international ........ 3 
 
 library , 8, 26 
 
 maritime . 73 
 
 merchant 64 
 
 mining ......... 64 
 
 municipal . 3 
 
 Roman ......... 69 
 
 scope ......... I 
 
 statutory 9 
 
 substantive .80 
 
 unwritten . 12 
 
 Lawyers' Reports Annotated . . . , . .17 
 Leading case ......... 31 
 
 Legislation . 52 
 
 See also Statutes. 
 Library, law 8, 26 
 
 Magazines, law ........ 25 
 
 Maritime law 73
 
 88 
 
 Index, 
 
 Mining law 64 
 
 Morality and law ........ 4 
 
 Municipal law ........ 3 
 
 Obiter, see Dicta. 
 Overruled cases 
 
 Pleading 
 Precedents 
 Private statutes 
 Probate court 
 Procedure 
 Public statutes 
 
 Reporter system, national 
 
 Reporters 
 
 Reporting, progress of . 
 
 Reports, abbreviations . 
 
 contents 
 
 English 
 
 names 
 
 number 
 
 state 
 
 subordinate courts 
 
 United States . 
 
 unofficial 
 Retrospective statutes . 
 Revised statutes 
 Roman law . 
 
 Session laws . 
 Stare decisis . 
 State common law 
 
 courts . 
 
 statutes 
 
 . 27, 
 
 43 
 
 
 
 • 79 
 
 35, 
 
 38, 66 
 
 
 . 10 
 
 75, 
 
 76, 78 
 
 
 . 78 
 
 
 . 10 
 
 
 . 16 
 
 
 15, 68 
 
 
 . 81 
 
 
 . 16 
 
 
 9, 12 
 
 
 15, 68 
 
 
 • 15 
 
 
 
 14 
 
 
 
 14 
 
 
 
 24 
 
 
 
 14 
 
 
 
 16 
 
 
 
 53 
 
 
 
 II 
 
 
 
 69 
 
 
 . II 
 
 
 35. 66 
 
 
 • 55 
 
 
 • 75 
 
 
 . 
 
 9
 
 Index. 
 
 89 
 
 Statutes 
 
 
 
 
 
 • 9 
 
 and common law 
 
 
 
 
 13. 13, 35 
 
 at large . 
 
 
 
 
 . II 
 
 federal 
 
 
 
 
 
 • 9 
 
 form 
 
 
 
 
 
 . 10 
 
 publication 
 
 
 
 
 
 . 10 
 
 state 
 
 
 
 
 
 • 9 
 
 unconstitutional 
 
 
 
 
 
 . 12 
 
 Substantive law . 
 
 
 
 
 
 . 80 
 
 Surrogate's court . 
 
 
 
 
 
 • 76 
 
 Syllabus of a case . 
 
 
 
 
 
 . 14 
 
 Text-books, authoritative 
 
 
 
 
 
 23- 35 
 
 classes 
 
 
 
 
 
 . 19 
 
 influential 
 
 
 
 
 
 . 20 
 
 reference . 
 
 
 
 
 
 . 19 
 
 Trial .... 
 
 
 
 
 
 . 39 
 
 Unconstitutional statutes 
 
 
 
 
 
 . 12 
 
 United States common law 
 
 
 
 
 
 . 58 
 
 courts 
 
 
 
 
 
 . 77 
 
 statutes . 
 
 
 
 
 
 . 9 
 
 Unwritten law, see Common law 
 
 
 Writs 46, 62 
 
 Written law, see Statutes. 
 
 Year-books . 
 
 
 
 
 
 68, 81
 
 ^4-
 
 i
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 This book is DUE on the last date stamped below. 
 
 OCT 71979 
 
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