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is a rock on which many split. His language is seldom, if ever, to be taken in a general sense, however general in the form of expression, or without mention of exceptions or limitations. It should rather be understood as spoken in reference to the facts under consideration, and limited in meaning by those facts.1 So there are various other similar things worthy to be observed in this connection; but the student will learn them as he proceeds in his studies.
§31. The reader has doubtless reflected, that neither the modern English decisions are authority in this country, nor the adjudications in one State authority in another. Yet these foreign cases are high evidence of what the law is. They are cited in our courts, listened to with respect, and their conclusions followed unless the judge sees some good reason for dissenting. This course is wise and wholesome, promotive of enlightened views, and of harmony in the jurisprudence of the common law. The legislature of Pennsyl vania, however, either not appreciating these considerations, or fearful of foreign influence, early passed a statute prohibiting the citation, in the tribunals of that State, of English cases bearing a date later than July 4, 1776.3 "Yet," said Tilghman, C. J., "it was never so unwise or so illiberal, as to wish to restrain the judges from deriving useful information from the opinions of learned foreigners of all nations. I have therefore had the curiosity to run through the English decisions on questions similar to that before us." The provision exists in one or two other States, but is not likely to be further ex
§ 31 a. There are reasons other than those usually ad
1 Bishop Mar. & Div. § 15; Marshall, C. J., in Brooks v. Marbury, 11 Wheat. 78, 90, 91, and United States v. Burr, 2 Burr's Trial, 415, 4 Cranch, 470, 482, 488.
2 Cumberland v. Codrington, 3 Johns. Ch. 229, 262; A. v. B., R. M. Charl. 228.
3 Du Ponceau Jurisd. 102.
4 Lewer v. Commonwealth, 15 S. & R. 93, 96.
dressed to courts of justice, why, in our sisterhood of States, respect be shown for the decisions of each other's tribunals. We are peculiarly one people; and, when we see one blood coursing through the common veins of our jurisprudence, we feel ourselves one. In practice, the judges of our older States sometimes look with too little favor on adjudications pronounced in the younger, a weakness of the same kind which closes the English eyes to most of the light shining from American legal science.
§ 31 b. We may add, that the decisions of our national supreme tribunal bind the State courts in the matters lying peculiarly within its province; such as the interpretation of the federal constitution, patent and copyright law, and the like. Upon other subjects, those decisions sustain to the State tribunals substantially the same relation as do the modern English adjudications and those of the sister States; though some judges give them a peculiar weight in commercial law, and other law of a like national character.1 We may doubt, whether, in strictnes of interpretation, the constitution of the United States requires the State courts to follow the federal doctrines, except in cases, and as regards points, in which the adjudication is liable to be reviewed by the supreme court of the United States.
§ 31 c. In looking into the decisions of courts whose authority extends not to us, we take into the account, in determining their value as quasi authority, the nature of the question, the ability of the judges, the arguments of the counsel, and, above all, the cogency of the reasoning which prevailed. If our own minds are entirely clear, viewing the question either as one of principle or of domestic authority, we seek no light from foreign sources, and give no heed to foreign opinions. But in cases of doubt, where we seek the judgment of others, we listen gladly to the voice of wisdom from the
1 See Stoddard v. Long Island Railroad, 9 Sandf. 180.
bench of a foreign court. In this sense, the tribunals of our sister States, of the United States respecting matters not within their power to supervise, and of England and Ireland at the present day, are alike foreign to us; while their decisions are regarded with great respect, being expositions of our own system of law.
$ 31 d. These observations teach us how to receive the expositions by learned men of other systems of foreign laws, and the decisions of courts sitting in countries not governed by the common law. Whenever a good legal reason comes to us, we permit it to do the work assigned by the Author of And if it comes laden with the approval of half the judicial world, though the half to which we belong not, still we receive it, giving it a respect proportioned to our veneration for its source. But, since every legal system has its peculiarities of internal rule and construction, a proposition good in one may not be so in others, because not homogeneous to them. We do not therefore derive much profit from bare statements of points held in systems of laws with which we are unfamiliar; but, from comments giving reasons, and from full opinions pronounced by judges giving reasons, great help often comes. In this view, the Scotch reports, too little known in this country, are highly valuable. And though the English judges follow too much the spirit of the genuine Scotchman, prone "to think of himself more highly than he ought to think ;" and so overlook the Scotch wisdom, as both the Scotch and the English do the American, no reason appears why we should imitate them.
§ 32. Looking, as before explained, for the evidences of the law, as distinguished from the law itself, we come to still other sources; such as "the treatises of the sages of the profession, whose works have an established reputation for correctness;"1 the legislative acts of other countries
Shaw, C. J., in Commonwealth v. Chapman, 13 Met. 68, 70; Chase,
governed by the common law, declaratory of what the law is;1 and the dicta of eminent judges upon the bench, which, however, as we have partly seen,2 do not, like the points decided, have the weight of authority. Sometimes also we look to what may be deemed the general sense and understanding of the legal profession; and especially to usages of the courts, though not sustained by any particular determination.⭑
C. J., in The State v. Buchanan, 5 Har. & J. 317, 365; Commonwealth v. Churchill, 2 Met. 118; ante, § 25; post, § 34.
1 Bull v. Loveland, 10 Pick. 9, 13.
* Ante, § 30.
* Ram Leg. Judgm. 36 et seq. Post, § 66 c.
§ 32 a. THE books of the law are divided into several classes by name; but they are to be considered rather in respect to their natures, than to the names their authors may have given them.
§33. Looking at the natures of the books, we divide a lawyer's library into four classes; namely, first, reports; secondly, digests; thirdly, elementary treatises or commentaries; fourthly, books blending in different proportions the digest and commentary, being of a mixed kind. Of the first class it may be observed, that, in all or nearly all of the reports, ancient and modern, the statement of the case, when not appearing in the opinion, and the head notes, are the work of the reporter: the ancient reports generally have only the reporter's understanding of the opinion of the court, orally pronounced; but, in the modern American ones, the opinion is usually written out by the judge who delivered it, and printed from his manuscript; while, with the English judges of the present day, the practice is not uniform. In respect to the points decided, we are to understand, that all the members of the court concurred in them unless the contrary appears; but the judges do not usually consider themselves collectively responsible for all the observations occurring in the course of an opinion. Secondly, digests are composed of short statements, commonly, not necessarily, arranged in the order of subjects alphabetically, of the points decided in the cases. They are of different degrees of merit, according to their accuracy, brevity, and convenience of arrangement. They