First, and most important, is the difficulty alluded to at the outset, and perhaps already sufficiently dwelt upon, viz., the danger necessarily arising from brevity. While agreeing with the Law Quarterly Review, that "it is hardly fair to find fault with a maxim for its brevity," one must also agree with the further statement of the Review, that "brevity should make us beware." 1 Not only is the meaning of short phrases peculiarly liable to misapprehension, but there are frequent mistakes as to their scope and application. Lord Bacon said: "This delivering of knowledge in distinct and disjoined aphorisms does leave the wit of man more free to turn and toss, and to make use of that which is so delivered to more several purposes and applications." But there is certainly the accompanying danger that "the wit of man" is very likely to turn and twist these aphorisms to purposes not intended by their framers.

Second, the fact that the great majority of legal maxims are clothed in the words of a dead language has had, in some instances, the effect of preventing proper inquiry into their meaning. A phrase couched in Latin seems to some persons invested with a kind of mysterious halo." Of course Judge Lord was right when he said: "There is nothing of mystery or of sanctity in the words of a dead language."3 But no one who reflects on the subject can doubt that some useless Latin maxims, and some untrue Latin maxims have continued current, and that other Latin maxims have been misapplied, when this would not have happened if those maxims had been expressed only in the vernacular. How else can we account for the way in which certain phrases are put forward as containing the reason for a rule, when the same phrase reduced into plain English is obviously nothing more than a restatement of the rule itself? A phrase, when put to such a use, may fairly be characterized as a "question-begging maxim." It is not an explanation; "it is merely an artificial statement of the thing to be explained; " it is "dogma, not reasoning."

Lord Bacon tells us that he put the maxims in Latin, because he regarded that language "as the briefest to contrive the rules compendiously, the aptest for memory, and of the greatest authority and majesty to be vouched and alleged in argument.' No

1 5 Law Quarterly Review, 444.

2 Preface to Bacon's Maxims of the Law.

3 125 Mass. p. 335, in reference to the words, "ultra vires." See Pollock's Essays in Jurisprudence and Ethics, 118.

5 Preface to Bacon's Maxims of the Law.

doubt these advantages are entitled to consideration; but there is the obvious disadvantage that maxims "put in Latin" will be more liable to be misunderstood by the average lawyer than by a man of Bacon's scholarship. And although the maxims have now been translated by modern editors, yet they are still generally cited in their Latin garb.

It is time to bring this discussion to an end. What, then, is the conclusion of the whole matter? Shall we say that Mr. Broom's book should be burned by the common hangman; and that the citation of maxims in courts of justice should be forbidden by a legislative enactment framed upon the model of the statute passed in the early days of Kentucky, prohibiting the citation of English decisions. Far from it. On the contrary, Mr. Broom's excellent work should be in the library of every practitioner; and all lawyers should familiarize themselves with the leading maxims, which have the great merit of being "easily learned and not easily forgotten." But it should always be remembered that these familiar phrases are not all of equal value; that some ought to be amended, and others discarded altogether. Above all, it should be remembered that these maxims (even the best of them) are only maxims; that they are "not meant to take the place of a digest; "2 that they are neither definitions nor treatises; that while they are "a convenient currency," yet "they require the test from time to time of a careful analysis; "4 and that, in many instances, they are merely guide-posts pointing to the right road, but not the road itself.

Jeremiah Smith.

1 Schurz's Life of Henry Clay, 49–50; Dembitz, Kentucky Jurisprudence, 7, 8.

JUDICIAL PRECEDENTS. A SHORT STUDY IN COMPARATIVE JURISPRUDENCE.

HE weight attached to precedent in every department of life

THE

is closely connected with the force of habit, and has its root deep in human nature. That judicial precedents have exercised great influence in all systems of law is more than probable; the feeling that a rule is morally right has often arisen from the fact that it has long been followed as a rule; but the degree in which judicial decisions have been openly recognized as authoritative, simply because they are judicial decisions, has varied very greatly in different systems. Judges are everywhere largely influenced by what has been done by themselves or their predecessors, but the theories to explain and control such influence have been diverse, and the development of the law has not been unaffected by them.

It may, perhaps, be of some interest to compare a few of these theories.

Two things should be borne in mind. In the first place, the functions of courts are not in practice confined to the decision of particular causes. Either by authority expressly delegated, or of their own motion, courts have undertaken to legislate with regard to the conduct of litigation before themselves; they have published general rules, in the form of command or permission, setting forth the manner in which they will proceed. The most striking example is the edict of the Roman prætor, which became a chief instrument in the development of the Roman law. Doubtless special cases gave rise to many of its provisions, but none the less it was in form a legislative, not a judicial act. The Scotch Court of Sessions, in its Acts of Sederunt, assumed extensive powers of enacting laws, and in our days governments have frequently intrusted to courts a wide authority to make rules of procedure. All this lies outside of our present limits. Such rules are not judicial precedents.

Further, the peculiar effect and quality of a judicial precedent as a source of law should be noted. So far as it expresses the opinion of wise or learned men, or so far as it expresses the opinion of the community, it may be a source of law; but its peculiar force as a judicial precedent lies, not in its accordance with philos

ophy or common sense; not in the fact that it is right, not that it ought to have been made, but that it has been made. Of course the decision of a court may unite the character of a judicial precedent with the character of an expression of wise thought or of popular sentiment, but often these characters are separated. To go no farther than our own law, there is no difficulty in finding decisions standing as precedents, at which, like the Rule in Dumpor's Case, "the profession have always wondered," or which, at any rate, are no expression of contemporary opinion, and would never be made at the present day.

Roman Law. Of judicial precedents as a source of law we find nothing in the time of the Republic, unless so far as the rulings of the pontifical college had this character, Dig. I. 2, 2, § 6. The manner in which the pontifices intervened in lawsuits between individuals is very obscure, and must remain largely matter of conjecture. I Ihering, Geist des röm. Rechts, § 18 a. At any rate, before the end of the Republic, their power of controlling litigation appears to have greatly diminished, and the practice of giving opinions had passed to the unofficial body of jurisconsults, juris prudentes, who seem to have enjoyed great public consideration; but the opinions of these jurisconsults, however worthy of respect, were in no way binding on the magistrates and judges. They did not form, however remotely, a judicial body.

But Augustus gave to certain persons jus respondendi by the authority of the Emperor. All that we know of the jus respondendi is contained in three passages: one an extract from the Liber singularis enchiridii of Pomponius, Dig. I. 2, 1, §§ 48, 49; the second, two sentences from Gaius (I. § 7), as follow: "Responsa prudentium sunt sententiæ et opiniones eorum quibus permissum est jura condere. Quorum omnium si in unum sententiæ concurrunt, id quod ita sentiunt legis vicem optinet; si vero dissentiunt, judici licet quam velit sententiam sequi; idque rescripto Divi Hadriani significatur;" the third, a passage in the Institutes, Inst. I. 2, §§ 8, 9,

taken from the above cited words of Gaius.

There has been much discussion whether the responsa of those jurisconsults who had the juris respondendi were made binding on the courts by Augustus, or whether this quality was first given to them by Hadrian. Glasson, Étude sur Gaius, 84-119. But from our present point of view the question of most interest is not at what date the responsa acquired a binding character, but whether, after they had aequired that character, they were binding only in

the particular case in which they were given, or whether they were obligatory upon the courts as precedents in later cases. If the former was the fact, then the jurisconsults were simply judges of a superior order, to whom the ordinary magistrates had to submit themselves. If the latter was true, then we have real precedents, analogous to those which prevail in the common law, but more stringent in character.

The extract from Pomponius throws no light on the question; it appears to be consistent with either theory; but the passage of Gaius, taken in its connection, seems to favor the latter view. He says, § 3:"Constat autem jus [civile] populi Romani ex legibus, plebiscitis, senatus consultis, constitutionibus principum, edictis eorum qui jus edicendi habent, responsis prudentium;" and after describing the other enumerated sources of the law, he gives the account of the responsa prudentium, above cited, thus seeming to class them among the sources of the law. Further, the expressions "jura condere" and "legis vicem optinet" are more applicable to opinions which made law than to those which merely decided special cases. like manner the Institutes of Justinian say (Inst. I. 2, § 3) “ scriptum jus est lex, plebis cita, senatus consulta, principum placita, magistratuum edicta, responsa prudentium," and they also adopt from Gaius the expression "jura condere." The most probable opinion seems therefore to be that the responsa of those prudentes who had the juris respondendi had the character of true judicial precedents.

In

By the time of Diocletian (A. D. 284–305) the jus respondendi seems to have ceased to be given, and gradually all the writings of the great jurists of the earlier years of the Empire came to be considered as authorities, without any distinction being made between their responsa and their treatises. It was just as if Judge Story's judgments and treatises were to be considered of like weight. The power of adding to the law or of modifying it by judicial decisions had passed away. The law, like the Empire, had reached a period of degredation and sterility. It had no vitality, and could only nourish itself indiscriminately on the past.1

1 "The writings of the jurists who had not possessed the jus respondendi were cited as entitled to an authority in no way inferior to that of the writings of privileged jurists, provided only that they were supported by the same literary prestige which distinguished the writings of the illustrious privileged jurists. . . . Considering that, in case of the privileged jurists, their other writings, which, of course, had nothing to do with their jus respondendi, were ranked on a par with the writings in the responsa, it was altogether absurd to insist on the jus respondendi as a condition of judicial authority.