Page:Harvard Law Review Volume 32.djvu/392

356 356 HARVARD LAW REVIEW form that military law has assumed in the United States. On the other hand miUtary law assumed the form of a code in England at a time when criminal law was being developed by the King's courts as a law of judicial precedent. From the outset, the two systems, even when unchecked by con- stitutional restrictions or by statutory provisions, tended to assume different forms. m The common law was, from the outset, a law of judicial prece- dent, that is, a system of law in which a decision of the court was regarded as declaring the law and as fixing it, within more or less vague limits, for the purpose of applying it to similar facts as they might arise in the future.^^ Attention has been called to the fact that in the earlier year books no specific citation is made to prior decisions of the court.^^ The court speaks as one having authority. This is undoubtedly correct but it does not neces- sarily mean that prior decisions were not regarded as precedents. To this day, a busy trial judge who has decided groups of similar questions on many different occasions and who has not been reversed, may sp>eak as one having authority and may follow his earlier decisions as precedents without citing them specifically. The courts whose opinions are reported in the year books were trial courts. The memoranda of cases which make up the year books whether noted down by students, by practicing attorneys or by court officials, were hasty memoranda taken down at the time, while the trial was proceeding. In all probability the re- porter had scant opportunity to note a citation if one were made. At that time cases could be studied only from the official rolls and in the memoranda of the year books. In both cases, they were in manuscript. Copies of the year books were few and it " On this question see, A. H. F. Lefroy, "Judge-Made Law," 20 L. Quart. Rev. 399. A. H. F. Lefroy, "The Basis of Case-Law," 22 L. Quart. Rev. 293, 416. Alex- ander Lincohi, "The Relation of Judicial Decisions to the Law," 21 Harv. L. Rev. 120. William B. Horablower, "A Century of 'Judge-Made' Law," 7 Col. L. Rev. 453. M. C. Klingelsmith, "The Continuity of Case Law," 58 Pa. L. Rev. 399- " See John Chipman Gray, "Judicial Precedents. A Short Study in Comparative Jurisprudence," 9 Harv. L. Rev. 27. For a discussion of the nature of the year books, see W. S. Holdsworth, "The Year Books," 22 L. Quart. Rev. 266, 360.