198 HARVARD LAW REVIEW. the law. Whereas, what we should do in such a case is to speak of the law as limited individual morals. AH those rules, such as the Statute of Limitations, the Statute of Frauds, and the Insolv- ency Acts, rules that owe their existence and look for their justifi- cation not to what individuals ought to do, but to what judges ought not to make them do, are instances of this kind of limitation. Let us now turn, by way of comparison, to a limitation of the law in the strict sense of the phrase, — a limitation of the law itself. The law is generally studied as a science. But the practical ex- pression of it is by the judges in the actual decision of cases,^ and this is not a science at all, but an art. It is, indeed, always an art to give practical expression to anything, and it is just as truly an art to decide cases by a rational ascertainment of rules and their rational application, as it is to decide any other sort of question, medical, military, or aesthetic. Furthermore, every art has its own peculiarities and their consequent limitations, and the art of deciding cases at common law is no exception. A decision at common law differs from a decision in any other profession in its quality as a precedent. A surgeon, for example, in deciding between an aneurism and an abscess, knows that his decision will be justified alone by the result. If he is right, the reasons for his decisions are of secondary importance. If he is wrong, if he opens an aneurism, mistaking it for an abscess, and the patient dies on the table, his reasons are at best an excuse. But it is not so in the law. A judge generally feels bound to fol- low some previous decision, and shrinks from carrying his own any further than he can teach it. The judgment in Dumpor's Case,^ for example, may have worked admirable justice between the parties. It may have been very unfair in the lessors in that case to insist on the clause in their lease against assigning, after having sanctioned an "absolute" assignment qidbus cumgue" which the parties may have understood to mean " anyhow " as well as " to any- body." But that is not the reason given by the court for its judg- ment. And when no one understands the reasons that are given, when Lord Eldon says that it has always struck him as extraor- dinary,^ and Sir James Mansfield says that the profession have always wondered at it,* the case is, professionally speaking, a fail- 1 Advisory opinions of the justices, even when constitutionally required, are not part of the law. Green v. Comm., 12 All. 155, 164. 2 4 Co. 119 b. 8 Op., Brummel v. McPherson, 14 Ves. Jr. 173.
- Op., Doe V. Bliss, 4 Taunt. 735.
