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The American Judiciary by LLD Simeon E. Baldwin
page 88 of 388 (22%)
difficult it is to find any express authority or any
_dictum_ exactly to the point. Nor, if there be one, is it
to be accepted without regard to the circumstances out of which
it arose or the end to be effected by the judgment. A precedent
may indeed be used slavishly, but so it may be used in the free
spirit in which it was conceived. Many an argument at the bar,
however, is ruined by an excessive anxiety to repeat the
_ipsissima verba_ of some ancient opinion, when the soul of
it is the only thing of value. And occasionally courts are
chargeable with pursuing the letter of some of their former
deliverances rather than the spirit which called them forth and
gave them all their vitality.

* * * * *



CHAPTER V


THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW


The English common law was and is an unwritten law. To find it
one has to look in legal treatises and reports of judicial
decisions. Its historical development has been not unlike that
of Rome. In Rome, as in England, there were in early times
written enactments or governmental declarations of standing rules
on but few points. Some of these writings were of special
importance, such as the twelve tables of Rome and the _Magna
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