Page:Harvard Law Review Volume 32.djvu/393

357 MILITARY LAW — A STUDY IN COMPARATIVE LAW 357 was very natural that specific citations should not be made. We find correspondingly few references to the textbooks which ap- pear to have been the standard books and to have shaped the entire development of the law. Furthermore, at the outset, prec- edents were few. Nearly every case which was thought worthy of a memorandum in the year books was one of first impression. Cases in which well-known principles were appUed to combina- tions of facts with which the court and bar had become famiHar would probably not be noted by the reporter. The year books are rather books of selected cases. In all probability there was no attempt to report all the opinions which were pronounced by the judges during the period covered by each of the year books. That precedents were looked upon as binding in the middle of the thirteenth century is evident, when we consider the way in which Bracton wrote that part of his book which is based upon EngHsh law and which is not more or less a copy or adaptation of Azo's Version of the Roman Law. Having no book of selected cases, Bracton proceeded to make one; and out of this book of selected cases prepared for his own use, he took the material upon which he based the text of his great work, "Tractatus de Legibus et Consuetudinibus Angliae." It is likely that specific precedents were actually relied upon' from a very early period in the King's courts, whether cited in the opinion or not. Even- tually the custom arose of citing in the court's opinion the specific decisions upon which it relied. Anglo-American law grows to a great extent by the accumulation of precedents, guided by the criticism and discussion of text- writers; and unvexed and un- aided by legislation. The courts are constantly comparing and analyzing the earHer cases. The early explanations, theories, and reasons of the law as set forth in judicial decisions may be followed, amplified or rejected in succeeding cases, but they are always the basis of discussion in testing the validity of recog- nized principles or in applying them to new facts. It is these opinions of the judges which are gathered by the subsequent text-writers as Bracton gathered them, except that the later text writers had the opinions of the courts in the year books and were not forced to rely upon the Plea Rolls. These decisions are com- pared and analyzed by the text-writers and from them are de- duced the principles set forth in the textbooks, which in turn