procedure, and these again trace back to the great principle of equality whereby the law does not consider the man but the nature of the acts and rights drawn into controversy before the judicial tribunals.

It is well understood that the principles and rules of the common law, as well as the construction of constitutions and statutes, are worked out by elaborate processes, in the decisions by the courts of cases as they arise, and in time a decision appears which satisfies the judicial and the popular sense as to what is the just and proper rule under the circumstances. This sets at rest for the time being the law on the subject. The decision may not be the first decision which has been made in the jurisdiction (though it may be), for it is only when such a condition is reached that the decision receives general acquiescence in the jurisdiction that the rule can be termed established. The cases so establishing rules are termed the leading

cases.

§ 176a. Law must keep pace with the conditions of trade and society. There is, however, scarcely a decision which can more than temporarily set at rest the law. The ever changing conditions of society, trade, and invention give rise to new situations and new questions. Old rules by this process are constantly becoming obsolete, because the tide of human activity must often bring a rule out from under its application, and controversies over new transactions invoke a new contest, until finally another decision differing somewhat from the former rule obtains general approval.

Such a decision is termed a ruling case to distinguish it from the superseded leading one. Every leading case

is during the time when its authority is respected a ruling one, and it continues a ruling case so long as the principle upon which it is based and the rules of law which it announces are regarded as the law of the subject. The multiplication of decisions emanating from our courts almost invariably follow along the line of the leading and ruling cases with slight modification until a new rule breaks up the authority of the former one, and then the trial courts and the tribunals inferior to the supreme judicial tribunal bow to the authority.

When a leading case or old case is supplanted by a later case, which announces and enforces a rule contrary to that declared in the earlier case, the former case is then denominated an overruled case. Many of our leading cases are overruled by later decisions.

This respect for judicial decisions, while essential to the existence and observance of fixed rules, has been carried to absurd lengths in its application. We may perceive by slight reflection how perilous is the experiment of relying upon mere precedent without in every instance examining the ground of the precedent and the elemental facts of the new case presented for decision in order to determine whether the facts present a case within the principle of the former case or, in extreme cases, whether the former case was determined on principle.

The most dangerous form of logical reasoning is invoked, viz., analogy. The safe application requires unchanged principles, unchanged policies, unchanged conditions of society or trade, and undistinguishable elemental facts involved in both the precedent and the case

at bar. All these existing, stare decisis works for uniformity and equal protection of law. But the world moves. As Wendell Phillips observes, "Nature's live growths crowd out and rive dead matter. Ideas strangle statutes." And Lord Coke says: "The principles of natural right are perfect and immutable, but the condition of human law is ever changing, and there is nothing in it which can stand forever; human laws are born, live, and die." Precedents bend to principles and rules depend not so much on precedent as on principles.

A new epoch in the law has been reached. We still look for precedent, but we go further and look for the ground upon which the cases were adjudged. Only about a decade ago Mr. Justice Holmes remarked: "We are only at the beginning of a philosophical reaction, of a reconsideration of the worth of doctrines which, for the most part, still are taken for granted without any deliberate, conscious and systematic questioning of their grounds."

In 1895, Austin Abbott said, "By actual law, we mean the law in force today, the law now applicable to transaction, and now controlling procedure. Time was when the earliest precedent was of paramount authority; later decisions were tested by the earlier, and disregarded when found to depart from the earlier. By an almost imperceptible process this rule has been reversed. It is now the latest decision of the court of last resort which is regarded as the highest evidence of the law; and earlier decisions are valued chiefly as they throw light upon the intent and effect of the later. It is, therefore, actual law which is now of the first importance, and historic law owes

its main value to the better understanding it gives us of the law of today. Beyond this it has little more than the intellectual interests which all parts of the history of our race afford."

It is the case in point which constitutes a precedent,in point in principle, and in point in the presence of all the elemental facts of the one at bar, and the absence of any other material fact. Too little attention is now being paid to what constitutes a case in point. Upon this point a statement of Lord Denman is of great value: "A case was brought before that court (the Exchequer), upon which it was proposed to overrule, not the dicta, the impressions, the fancies of the learned frequenters of Westminister Hall, but decided cases, running through a period of near fifty years, appearing in numerous reports, and laid down by all the text-writers. I believe Mr. Justice Bayley, on a particular examination of those cases, thought them clearly founded in error; they were traced to a dictum uttered by Lord Mansfield in his first judicial year, which dictum was held by Mr. Justice Bayley to be untenable; and my noble and learned friend pronounced the unanimous judgment of his court, denying the authority of these cases, and overruling them all. I speak of the case of Hutton v. Balme (2 You. & J. 101; 2 Cr. & J. 19; 2 Tyrr. 17; and on Error, 1 Cr. & M. 262; 2 Tyrr. 620; 3 Moo. & So. 1; 9 Bing. 471). And I am tempted to take this opportunity of observing, that a large portion of that legal opinion which has passed current for law, falls within the description of 'law taken for granted.' If a statistical table of legal propositions should be drawn

out, and the first column headed, 'Law by Statute,' and the second, 'Law by Decision;' a third column, under the heading of 'Law Taken for Granted' would comprise as much matter as both the others combined. But when, in pursuit of truth, we are obliged to investigate the grounds of law, it is plain, and has often been proved by recent experience, that the mere statement and restatement of a doctrine-the mere repetition of the cantilena of lawyers-cannot make it law, unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle" (26a).

The above, with the opinion of the court in a recent New York case, indicates clearly the test of a case in point. "Certain expressions of learned judges, used arguendo, are relied upon by counsel as establishing a principle that controls this case. Principles are not established by what was said, but by what was decided, and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision. 'General expressions,' as the great federal jurist once said, 'are to be taken in connection with the cases in which these expressions are used'" (27).

§ 177. The law merchant. The names of Holt and Mansfield must always stand among those of the great jurists of the world. Their fame rests almost entirely

26a Lord Denman in O'Connell v. The Queen, 11 Cl. & Fin. 369, 373.

27 Cohens v. Va., 6 Wheat. 264, 399; People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417-447.