set, in the form of legislation, whether it was in writing or not, in the popular sense of the term." By virtue of his prerogative, the King ordained the Articles of War for the Royal Army during the continuation of the war for which they were ordained. By a delegation of royal authority the commanders of armies from time to time proclaimed similar articles. Cromwell assumed this power as a part of the inherent power of the head of the English state. Legislation by Parliament proved necessary to supplement the royal prerogative in cases in which it was found necessary to impose restrictions and to inflict punishments which were in excess of the royal prerogative alone. The early English Army was a temporary force raised in each war for the continuation of that war and dissolving when the war had come to an end. When the Army had become a permanent national force, the Articles of War by which it was governed in England in time of peace were enacted by Parliament, while outside of England the royal prerogative was still sufficient to ordain Articles of War and to enforce them. The growth of the power of Parliament and the gradual disappearance of the personal authority of the King gradually led to legislation by Parliament which superseded, while it adopted, the Articles of War ordained by royal prerogative; although the prerogative was nominally exercised by the ministry long after the subordination of the King to Parliament had become thoroughly established. The usages and customs of the Army undoubtedly furnished much material for the content of the Articles of War but the constant tendency was to reduce them to definite form and to promulgate them as royal or parliamentary Articles of War.

With the outbreak of the American Revolution the English Articles of War, with slight modifications, were enacted by the Congresses and Assemblies of the different colonies and by the Continental Congress. The Congress of the United States under the Constitution of 1787 has reenacted these Articles from time to time with various additions and amendments and at present

11 For the scope and extent of Military Law in England and the relation between Military Law and Martial Law see W. S. Holdsworth, "Martial Law Historically Considered," 18 L. QUART. REV. 117; H. Erle Richards, "Martial Law," 18 L. QUART. REV. 133; Cyril Dodd, "The Case of Marais," 18 L. QUART. REV. 143, and Frederick Pollock, "What is Martial Law?" 18 L. QUART. REV. 152, in which however, special emphasis is laid on the nature of Martial Law.

they form a part of the Federal Statutes, being section 1342 of the Revised Statutes of the United States. From the time of the earliest royal Articles of War down to the Articles of War which were enacted by Congress in their present form on August 29, 1916, and which, with the exception of certain specified Articles, took effect on March 1, 1917, the constant tendency has been to express military law in the form of legislation. Customs have been incorporated in legislation. New problems which arose from time to time under changed conditions have been solved, omissions and gaps in the existing law have been filled, and the elimination of provisions which had become obsolete have all been made, for the most part, by legislation. Military law in its present form consists, to a large extent, of the Articles of War and of the commentaries written upon these Articles by the different authorities upon this subject. In this respect the development of military law has been far more like the development of Roman law than like the development of English law.

It must be admitted that the development of criminal law in the United States and in some of the states of the Union has been, to a large extent, statutory. This is a peculiarity due to constitutional and statutory provision, however, and is a rather accidental phenomenon. While some states have no substantive common law of crimes, it is because their legislatures have shown an intention to make legislation exclusive on the subject of crimes; although even in such states the legislatures may forbid commonlaw crimes by name and thus make them statutory crimes without any enumeration of their elements.12 While the United States courts have no substantive criminal jurisdiction over commonlaw crimes, this grows out of the fact that the inferior federal courts are limited to such jurisdiction as is conferred upon them by Federal Statute.13 Congress may forbid common-law crimes by name and thus make them statutory crimes without any enumeration of their elements.14 This may in part account for the

12 Such as assault, Baker v. State, 12 Ohio St. 214 (1861); disturbance of the public peace, Stewart v. State, 4 Okla. Crim. 564, 109 Pac. 243 (1910); and nuisances, State v. De Wolfe, 67 Neb. 321, 93 N. W. 222 (1903).

13 United States v. Hudson, 7 Cranch (U. S.) 32 (1812); Manchester v. Massachusetts, 139 U. S. 240 (1890); United States v. Eaton, 144 U. S. 677 (1892).

14 Such as murder and robbery, United States v. Palmer, 3 Wheat. (U. S.) 610 (1818).

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form that military law has assumed in the United States. On the other hand military 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 constitutional restrictions or by statutory provisions, tended to assume different forms.

III

The common law was, from the outset, a law of judicial precedent, 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.15 Attention has been called to the fact that in the earlier year books no specific citation is made to prior decisions of the court.16 The court speaks as one having authority. This is undoubtedly correct but it does not necessarily 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 speak 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 reporter 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

15 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. Alexander Lincoln, "The Relation of Judicial Decisions to the Law," 21 HARV. L. REV. William B. Hornblower, "A Century of 'Judge-Made' Law," 7 COL. L. Rev. 453. M. C. Klingelsmith, "The Continuity of Case Law," 58 PA. L. REV.

I 20.

399.

16 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.

was very natural that specific citations should not be made. We find correspondingly few references to the textbooks which appear to have been the standard books and to have shaped the entire development of the law. Furthermore, at the outset, precedents 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 applied to combinations of facts with which the court and bar had become familiar 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 English 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. Eventually 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 unaided by legislation. The courts are constantly comparing and analyzing the earlier 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 recognized 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 compared and analyzed by the text-writers and from them are deduced the principles set forth in the textbooks, which in turn

exercise more or less influence upon the subsequent current of judicial decision.17

Roman law was not a law of judicial precedent. In the classic period of the Roman law the commentators make no reference to the decisions of the court; that is, to the decisions of the prætor and the judex. They are not noticed, even for hostile criticism. They have no effect of any sort upon the development of the Roman law.

The reason for this great difference in the organs of legal development between these two systems of law lies in the fact that Anglo-American judges are trained lawyers and that they are considered as the oracles of the law, at least for each case which is submitted for adjudication. The decision of a judge is therefore the law of that case and as far as the case is a precedent, subject to the chance of reversal by a higher court or of overruling by a coördinate court, it helps to declare and to fix the law for future cases. Arguments of counsel and citations of authority are advisory only. In Roman law on the other hand, the prætor was not a trained lawyer except by a mere accident. He was not supposed to have any official knowledge of the law other than to grant or to deny the formula to the plaintiff or the exceptio to the defendant. The prætor presided over the case and referred it to the judex to ascertain the facts. The judex, like the prætor, was not supposed to have any official knowledge of the law. Any legal question of any difficulty was decided by the opinion of the jurisconsultus. This method of administering justice which seems so peculiar to the Anglo-American lawyer is due to the fact that the jus civile originally was one of the mysteries of the college of pontiffs, the priestly caste. The growing power of the plebeians and the downfall of the power of the early aristocracy of Rome reacted upon the position of the pontiffs and the exclusive knowledge of the law which was one of the great sources of their authority was wrested from them. By that time, however, it had become well settled that neither prætor nor judex was supposed to know the law and that legal questions were to be de

17 For a discussion of the break-down of the law of precedent under present conditions, see Roscoe Pound, "Law in Books and Law in Action," 44 Am. L. Rev. 12, and John S. Sheppard, Jr., "The Decadence of the System of Precedent," 24 HARV. L. REV. 298.