litigated cases which there is no written law to cover and is derived from the common ideas of right and expediency.

It is a little difficult to define the common law without giving the impression that the judges are law makers in all cases in which the legislature has not spoken. Such an impression would be very far from the truth. The early English writers defined the common law as that law which had been in existence for so long that the memory of man runneth not to the contrary. They thought of it as law the origin of which had been lost in the mists of antiquity. One writer says that it originated in statutes worn out by time. This is pure fiction and is an example of the fictions in which the earlier writers delighted to deal in the explanation of legal facts.

Common law is really judge made law, but only in the sense that judges must declare and apply the fundamental ideas of justice developed by the people at large. Myriads of cases must come before them for decision that involve questions of common right and wrong and questions of customs and even of expediency upon which there is no statutory law which they must decide. In so deciding them they make law, and other judges in future cases will strive to follow the precedent unless they believe it manifestly wrong, in which case it will be modified or overridden.

The great foundation of our law is the common law. Statutes add to it or modify it or alter it, or re-state it. Let us see if we cannot get a more adequate idea of the nature of the common law by an illustration. Suppose one man slays another without cause. No statute

has been enacted defining this to be a crime. The slayer is brought before the bar of justice. The court declares him to be guilty of a crime by the common law. Note

that in this instance, the judge does not proclaim a general rule to govern future cases, as statutes do, but merely decides the case before him. Or, again, we shall notice in the law of contracts, the contractual rights and liabilities of minors. That whole subject has developed as a part of the common law as innumerable cases involving particular facts have arisen for decision.

The common law is found in the reports of cases to be considered in a following section.

Sec. 18. JUDICIAL REPORTS. The decisions of the courts, with the opinions sustaining them, are preserved in books called judicial reports.

The courts in deciding the cases coming before them, whether involving statutory law or common law or both, generally in the higher courts accompany them with opinions setting forth the reasons for their decision. The opinions are published in books termed judicial reports and they constitute one of the most important sources from which the lawyer obtains his estimate of the law.

In the early days reporting of the cases was done as private enterprise and most of these earlier reports go by the name of the reporter. Thus Marbury v. Madison, I Cranch, 137, means the United States Supreme Court case of Marbury against Madison, reported in Cranch's reports, Volume 1, at page 137. Reports now go by the name of the jurisdiction, as McDonald v. City, 258 III. 52, and the earlier reports have been numbered in the series so that the report of 1 Cranch could now also be identified as 5 United States.

The judicial reports are as important in determining the statutory law as the common law. They are, generally speaking, the only repository of the common law. Text

books which are written upon the common law derive their information from the reports. But while the statutes are preserved in the legislative archives and separately published, and we need not go to the reports to find them out, yet the judges must construe and apply the statutes as they decide cases covered by them; and it is as important to our knowledge of the statutory law to find how it has been construed and applied to different sets of facts as it is to know the text of the statutes. For statutes are necessarily very general in their terms, and frequently need construction, and certainly need a great amount of consideration in applying them to the thousand different sorts of cases that arise. For instance, if a statute says that a workman injured in the course of his employment shall have compensation, we have a multitude of questions as to what constitutes the course of employment, upon which the statute cannot possibly be explicit not only because of the great amount of detail that would be required but because also of the impossibility of foreseeing all of the divers facts that will arise. Is an accident in the course of going to or from work in the course of the employment? If it occurs during the lunch hour upon the premises? Suppose the workman is doing an errand for the employer upon his way home from work; suppose that being sent upon an errand during working hours he deviates for a purpose of his own and is injured. We can readily see that if we had a case involving facts of this sort we would not only have to consult the statute on that subject, but also the reports to find the construction and application of the statute to a case as near our own as possible. So that we may readily see how important the judicial reports are, first, as the sole repository of the common law, second, as the exposition of the statutory law.

Sec. 19. DOCTRINE OF STARE DECISIS. In. the English and American law it is the policy to stand by decided cases.

From what has been said in the former section it is apparent that we depend upon past decisions as guides to what the court will do in future decisions upon similar facts. From what the court has said we determine what the law is, that is, what the court will continue to say. The court will stand by precedents and the precedents form the law. This doctrine is expressed in the words "stare decisis."

Precedents will be overruled by the courts where manifestly unjust or erroneous or out of harmony with the decisions. And the law may be so gradually modified that a precedent of years ago may become overruled almost without any appearance thereof. Legislation, may of course at any time, override prior decisions.

Decisions of other jurisdictions have only a persuasive force; they are not binding.

Sec. 20. SECONDARY SOURCES OF THE LAW. Text books, encyclopedias, digests, derive their information from the statutes and reports and constitute very great helps in finding the law.

Finding the law is greatly facilitated today by the fact that there are cyclopedias, text books, digests and other law finders by which the law in the reports is arranged and pointed out. Were it not for the fact that this work is done for the lawyer, he would find himself helpless in the enormous mass of material he would have to digest for himself. To thoroughly investigate the law on any point he of course goes to the statutes and reports themselves, but he is able to find his cases expeditiously through these secondary authorities.

CHAPTER 4.

THE JUDICIAL SYSTEM.

Sec. 21. FUNCTION OF THE COURTS. The courts are the constituted tribunals for the trial of cases according to the law as interpreted by them.

In our scheme of government we have the legislature to make the law, the judiciary to interpret and apply it to cases, and the executive to execute it. We have already seen, that the judges in their declaration of the common law, practically assume the function of law makers upon matters of fundamental principles where the legislature has not spoken, although theoretically they have no law making power, and practically also they have none except in the sense indicated-that is to apply the customs that have become established and the principles of right which are generally accepted. The interpretation of statutes and their application to varying sets of fact constitutes an essential adjunct to the statutory law and must always be considered in the understanding of the law.

We have also seen that it is the function of courts to determine whether statutes are constitutional or not.

The courts sit for the trial of cases and it is only in the consideration of actual events that call for the application of the law that they will render any opinion upon it.

Sec. 22. COURTS OF LAW AND COURTS OF EQUITY. In English and American jurisprudence rights, titles and remedies are of two classes: those developed in the