640 PRIVATE LAW 



process of reasoning by which the result was reached are accurately 

 known. It is assumed either that they are accurately reported in 

 some book or periodical, or that they have been completely incor- 

 porated in the record of the case. The precise point decided by the 

 judge is thereafter in theory recognized as a part of the general body 

 of the law of the state, colony, or nation whose judicial officer he 

 is. Theoretically it remains conclusive evidence until overruled or 

 repealed, or unless it is found to be in conflict with another decision 

 of equal authority, in which case, with the benefit of all the work 

 done in the two litigations represented by the conflicting decisions, 

 the question is submitted to a further and final test whenever it may 

 again arise. The reasoning in the opinion of the court is not con- 

 clusive evidence of the law except so far as it is necessary to the 

 precise point decided, because so far as it is not thus necessary the 

 judge is not presumed to have had the full benefit of the research 

 and arguments of counsel, or to have given to his own reasoning and 

 use of language the same degree of attention. His unnecessary 

 reasoning, therefore, receives in the English law and American 

 courts the same weight only which is awarded to all judicial deci- 

 sions in other systems of law if I correctly understand them; 

 namely, that which belongs to the opinion of an able and learned 

 professor or textwriter, which is to be considered with care and 

 respect, but not necessarily to be followed. Hence, the so-called 

 syllabus or abstract prefixed to every modern printed report of a 

 judicial decision when properly drawn up is very often composed 

 of two parts: first, a statement of the precise point decided, with so 

 much of the facts and reasoning, and so much only, as is necessary 

 to make clear that decision; and second, propositions laid down, as 

 we say, obiter, which might have been omitted without creating an 

 ellipsis in the train of argument by which the actual result of the 

 case was reached. 



This is the theory which causes the English or American lawyer 

 to give greater weight to an appellate decision delivered by Lord 

 Mansfield after argument by such counsel as Dunning and Law, 

 to one delivered by John Marshall after argument by Webster and 

 Wheaton or Pinkney, than to the work of any philosopher; why 

 he would give comparatively little weight to any reasoning of 

 Mansfield or Marshall himself in a case that went by default, or 

 where the reasoning was unnecessary to the decision; and why he 

 has grown up and lives with the belief that his Continental brother 

 is deprived of the most valuable instrument for the attainment of 

 perfection. 



It is evident that there was always some danger of defective 

 application of the theory of judge-made law to the circumstances of 

 the particular case; a little danger of the submission of a collusive 



