the opinion, that determine the true doctrine of a reported case.

It follows, then, that properly to understand the precise doctrine of a reported case, and to estimate its value as a precedent, a knowledge of the pertinent facts is vital; and the failure of counsel to possess himself of the precise facts, and to put the court in possession of them, is a failure himself to comprehend, or to assist the court in comprehending, the real value of the case as authority.

When the facts and the decision are compounded and tried in the crucible of legal analysis, the resultant legal rule is the doctrine of the case, whether the doctrine itself be sound or unsound. By no use of words can the court extend, limit, or qualify this result. As the compounding of certain chemicals produces a certain product, in spite of the incantations of the chemist, and as the tuning fork produces a certain note, unaltered by the uncultured ear that hears it, or the untrained voice that attempts to reproduce it, so the judicial disposition of a case, on a fixed state of fact, produces a doctrine which the court, by no words that it may utter in its opinion, can alter-a doctrine to be ascertained only by scrutinizing the facts through the medium of the decision. A certain combination of notes produces a musical chord. The silencing of a single note, or the introduction of a new note, may produce a more pleasing effect, but the old harmony is altered.

None but the poet may hear the music of the spheres. None but the legal artist may catch and reproduce the true harmonies of our judicial music.

I have already said that the court cannot, by any language of the opinion, or by any attempt to put into words the rule of law deducible from the decision, extend or limit the true doctrine of the

case. Indeed, it constantly happens that in deciding a case the court itself is unaware of the real doctrine it has applied, since there were other facts present in the case, but only subconsciously in the mind of the court.

Let me illustrate this: Imagine a court organized by the members of some monastic order, in the ancient days of courts of casuistry. A brother who for the day has been assigned some duty beyond the walls reports that he met a blind beggar on the highway, much in need of alms. He submits to the court the question of his duty towards the beggar. After argument the court decides that it was his duty to assist the beggar with alms. An opinion is accordingly prepared by the presiding abbot, justifying the decision, and announcing the rule of conscience to be that "it is the duty of each member of this order to assist blind beggars in need of alms." And this rule is entered upon the records of the court as a precedent for the guidance of the brethren in future cases.

Now, as will presently appear, this was not in fact the rule really deducible from the decision. The court may have thought so, and so stated in its opinion, but it discovers its mistake in the next case to be illustrated.

At a subsequent session of the court, another brother reports that on his errands of mercy he has met another blind beggar in sore need of alms, but that the beggar was a notoriously unworthy fellow, who would spend any alms bestowed in drink at the nearest wineshop. Again argument is had, in which stress is laid upon the former ruling; and the language of the court in stating it is quoted, namely, "it is the duty of every member of the order to assist blind and needy beggars," without qualification. But the court, now perceiving, for the

first time, the error, not in its decision, but in the broad form in which the rule was stated, decides that there was no duty in this second case, and orders the formal statement of the rule on the records to be amended so as to read thus: "It is the duty of every member of the order to assist blind and needy beggars, provided they are worthy."

By the time the brothers have familiarized themselves with the new rule as formulated, a third case arises, in which the blind beggar was needy and worthy, but the brother who encountered him was himself without means of aiding his distress. The two former precedents are quoted and pressed in the argument, but again the rule is qualified, and now made to read that "it is the duty of every member of the order to assist blind, needy and worthy beggars, when means of aid are at hand.". And so the illustration might be continued indefinitely. As new circumstances arise, the language in which former precedents were expressed-which we now perceive to have been immeasurably broader than the facts or the decision warranted-becomes narrowed more and more until its original form may be wholly lost.

The real decision in the first case was one thing-the statement of it by the court was a wholly different thing. And so with the results in the cases that followed.

The same situation is constantly presented in our own precedents. The court itself misconceives the real note it has sounded until later examination, from a new viewpoint, discovers it.

The truth is, then, that the real principle for which a case is a precedent becomes apparent rather from the facts and the result than from the words in which the court formulates it.

So much for the important rôle that the facts play, and the less important part that the opinion plays, in fixing the doctrine of a reported case, and the consequent necessity of a minute knowledge of the facts, consciously or subconsciously present, in determining the true value of cases cited as precedents in legal argument.

It follows that no mere quotation by the brief-maker from the words of the court, howsoever strongly expressed, unless these reveal the precise situation of fact, will convey with certainty the rule of law for which the case is a precedent. When confined to the case in which it was used, the language may be ever so appropriate, and yet misleading when applied to a different state of facts. Besides, every lawyer knows that judges will occasionally go beyond the necessities of the case in hand, and express obiter opinions on irrelevant points. These extrajudicial expressions are universally condemned as not authority of the highest order. As already suggested, no court has power to decide any other than the case before it; and any attempt, consciously or unconsciously, to create a precedent broader than the instant case warrants, is extrajudicial, and ineffective as imperative authority.

The real doctrine of a case is found, then, not in what the court said, but in what the court decided.

Thus, in many words, and at the risk of prolixity, I have emphasized the important part that the facts of any decided case play, in fixing the value of the case as authority.

This has been not without design. The inducement to dwell at such length on what is familiar learning is that I am obsessed with the belief that most lawyers ignore it in the preparation of their briefs.

Coming back to our discussion of the use of primary authority in the brief, and making practical application of what has just been said in connection with precedents as authority, if you have followed the argument thus far, you will perceive the advantage, nay the necessity, in the interest of both the brief-maker and the court, of accompanying the citation of every case seriously relied on by a statement of the material facts. Or, to express the same idea negatively, you will recognize the unwisdom, in your own interest, and the unfairness toward the court, of filling your briefs with mere statements of legal rules, bolstered up by citations of cases, or by extended quotations from these, without a statement of the accompanying facts of each

case.

In the absence of such analysis, citations of reported cases and quotations from opinions are but invitations to the judges to go to the library, find the volumes, search out the cases, and patiently work out for themselves the meaning,

relevancy and value of each—a task that should not be laid upon the judges, and one peculiarly incumbent upon counsel.

If the judges of our courts of final appeal, with dockets crowded and litigants clamoring for a decision of their rights, must choose between mental and physical drudgery of this sort, and recourse to secondary authority, the blame seems to lie rather at the door of counsel than of the court.

If the brief, on the other hand, contains a skilful analysis of the cases relied on, with the facts, the decision, and the reasons supporting the rule applied, the latter supported by quotations from the opinions-quotations which, preceded by a statement of the facts, are now luminous with interest-the brief not only becomes of vastly more persuasive force, but it lightens the labors of the court, furnishes greater security against error, removes the seductive influences of secondary authority, and makes possible the ideal opinion that demonstrates its soundness on its face.

IT

T RARELY happens that the announcement of the publication of a law book carries with it as much of historical interest and distinction as does the publisher's notice of a new edition of Bouvier's Law Dictionary by Francis Rawle, Esq.,* of the Philadelphia Bar. Since 1839 thousands and thousands of legal literary efforts have been announced, sold, filled their temporary spheres of usefulness, and have gone the way of all commonplace things. They are listed in the legal bibliographies as "O. P.," and are forgotten. It is noteworthy that the names of most of John Bouvier's American contemporaries as found in Marvin's Legal Bibliography, published in Philadelphia in 1847, are never seen in the pages of catalogues of current legal publications. Those who have survived and whose works have become legal classics can be listed on the fingers of one hand. The interval of seventyfive years has left us Bouvier's Law Dictionary, Greenleaf on Evidence, Kent's Commentaries, Story's Commentaries, and a very few others.

It will be interesting to recall that John Bouvier was a Frenchman, being born in the village of Codognan in the south of France in 1787, and that he was brought to this country at the age of fifteen by his father and mother who settled at Philadelphia. Owing to reverses suffered by his father, he was almost immediately compelled to earn his own living, and we find him, at the age of twenty-five, becoming a citizen of the United

States and the proprietor of a printing office at West Philadelphia. Bouvier was connected with various newspaper enterprises as editor and publisher until 1820. 1820. While thus busily engaged, he resolved to study law. The problems which confronted Bouvier in this undertaking were very different from those which are encountered by the law student to-day. Carefully prepared courses of study in schools of law conducted by trained teachers were not known. The student started by procuring access to Coke and Blackstone which he read at spare moments and mastered as best he could. Bouvier refers to his own difficulties in an interesting way in the preface to the first edition of his dictionary which was published in 1839:

"To the difficulties which the author experienced on his admission to the bar, the present publication is to be attributed. His endeavors to get forward in his profession were constantly obstructed, and his efforts for a long time frustrated, for want of that knowledge which his elder brethren of the bar seemed to possess. To find among the reports and the various treatises on the law the object of his inquiry, was a difficult task; he was in a labyrinth without a guide; and much of the time which was spent in finding his way out might, with the friendly assistance of one who was acquainted with the construction of the edifice, have been saved, and more profitably employed. He applied to English law dictionaries and digests within his reach, in the hope of being directed to the source whence they derived their learning; but he was too often disappointed: they seldom pointed out the authorities where the object of his inquiry might be found. It is true such works contain a great mass of information, but, from the manner in which they have been compiled, they sometimes embarrassed him more than if he had not consulted them. They were written for another

country, possessing laws different from our own, and it became a question how far they were or were not applicable here. Besides, most of the matter in the English law dictionaries will be found to have been written while the feudal law was in its full vigor, and not fitted to the present times, nor calculated for present use, even in England.

And there is a great portion which, though useful to an English lawyer, is almost useless

to the American student."

Bouvier completed his studies and was admitted to practice in Fayette County in 1818. In 1822 he was admitted as an attorney of the Supreme Court of Pennsylvania. In 1836 he was appointed Recorder of the City of Philadelphia and in 1838 was made an Associate Judge of the Court of Criminal Sessions.

After his admission to the bar, Bouvier did not forget his determination to provide the legal profession in America. with an adequate law dictionary. He worked upon the project from time to time and within the year after his appointment as a Judge of Criminal Sessions, he had "the satisfaction in 1839 of presenting in two octavo volumes the results of his anxious toils to his brethren and the world at large."

The work received the approval of eminent judges and lawyers, among them Justice Story and Chancellor Kent, the latter being quoted as saying, “After running over almost every article, I am deeply impressed with the evidence of industry, skill and judgment with which the work was compiled."

Samuel Austin Allibone, distinguished author of the "Dictionary of English Literature and British and American Authors," in a review of the work of Bouvier in the North American Review for July, 1861, pays high tribute both to the Dictionary and to Bouvier's Institutes of American Law, published in 1851. "The author of these volumes," says Allibone, "taught lawyers by his books, but he taught all men by his ex

ample, and we should thereby greatly err if we fail to hold up for the imitation of all his successful warfare against early obstacles, his unconquerable zeal for the acquisition of knowledge, and his unsparing efforts to distribute the knowledge thus acquired for the benefit of his professional brethren."

In undertaking the preparation of a distinctly American law dictionary, it was necessary for the author to supply a great mass of material relating to the operations of our government, our constitutions and our political and civil institutions. As Bouvier says in recounting his early difficulties, a great portion of the current English dictionaries were almost useless to the American student.

"What, for example, have we to do with those laws of Great Britain which relate to the person of their king, their nobility, their navy, their army; with their game laws; their local statutes, such as regulate their banks, their canals, their exchequer, their marriages, their births, their burials, their beer and ale houses, and a variety of similar subjects?

"The most modern law dictionaries are compilations from the more ancient, with some modifications and alterations; and, in many instances, they are servile copies, without the slightest alteration. In the meantime the law has undergone a great change. Formerly the principal object of the law seemed to be to regulate real property, in all its various artificial modifications, while little or no attention was bestowed upon the rules which govern personal property and rights. The mercantile law has since arisen, like a bright pyramid, amid the gloom of the feudal law, and is now far more important in practice than that which refers to real estate. The law of real property, too, has changed, particularly in this country.

"The English law dictionaries would be very unsatisfactory guides, even in pointing out where the laws relating to the acquisition and transfer of real estate, or the laws of descent in the United States, are to be found. And the student who seeks to find in the Dictionaries of Cowell, Manly, Jacob, Tomlins, Cunningham, Burn, Montefiore, Potts, Whishaw, Williams, Rastell's Termes de la Ley, or any similar compilation, any satisfactory account in relation to international law, to trade and commerce, to maritime law, to medical jurisprudence, or to natural law, will probably not be fully gratified."