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THE GREEN BAG

system is, on the other hand, notoriously a system of abstract rules and principles, pre conceived and laid down regardless of the practical application made of them in par ticular cases. An attempt briefly to state the distinction would probably result in some such conclusion as this; that the com mon law is the aggregate or resultant of the decisions of the judges in many cases, while the civil law consists of rules which the gov erning power has prescribed, in the belief that they are the result of the highest wis dom, and which, by application in indi vidual cases, will be found to effectuate jus tice. Civil law principles are not formulated with reference to the facts in particular cases. The judges who administer the law have nothing to do with molding it. The jurisconsult who formulated rules for hypo thetical cases was not the official charged with the duty of administering the law in a particular case, to the end that justice be done between the parties, and who had listened to the arguments of counsel learned in the law, jealously guarding the interests of their respective clients. It is not to be denied that the doctrine of precedent in recent times has been ampli fied in such an extraordinary way that our whole judicial system seems to be imperiled. Facilities for the writing and publication of judicial opinions have been' so far intended that we are suffering with a plethora of ex positions of so-called rules of law. Not only are the courts of last resort, consisting each of numerous judges, working overtime in the effort to convince counsel that all the precedents cited have been examined and all the ingenious arguments urged have been fully considered in determining the rights of the parties to a particular controversy, which may be of no interest or consequence save to the parties themselves, but a great number of intermediate courts have been created whose judges seem ambitious to justify, by lengthy and laborious opinions, the conclusion that they too are worthily

discharging the function of adding to the judicial fabric. Publishers are eager to print and sell to the legal profession everything which has the form or semblance of a judicial opinion, while the industrious di gesters and indefatigable makers of cyclo pedias vie with each other in bringing to gether the greatest number of citations, until the wearied lawyer, searching for a case exactly "on all fours," is driven well nigh to insanity lest he may overlook some judicial announcement in a controversy, the photographic reproduction of the facts of which makes it bear a familiar resemblance to the facts of the case which he is endeav oring to picture to the imagination of the judge before whom his case is being tried. But I have faith to believe that the anti dote to the disease exists somewhere in the judicial pharmacy, and that in time it may be discovered and its beneficial effects real ized. May we not hope that some counteract ing virus may be found which will render judges of courts of last resort immune to the ambition of creating new rules of law for cases which might just as satisfactorily be disposed of under rules long recognized and so well established that citations of multitu dinous authorities in their support would be superfluous; and that lawyers will realize that although we live under a system of case law, cases are valuable only as illus trating principles, and that however im portant and useful the study of cases may be as a guide to principles, it is after all the principles and not the case which will fur nish illumination for the satisfactory decision of the new case presented. The value of the doctrine of precedent consists in the fact that the rules evolved from many cases and gradually worked out by long experience are much more satisfactory than these laid down arbitrarily or theoretically by legis lators or jurists. A doctrine thus estab lished is the result not of the wisdom of one mind, but of the cumulative wisdom of many minds. It has in it not only the in vention of genius, but also the soli dit v of