The American Judiciary, page 59 by Simeon E. Baldwin
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ee gave their opinions.[Footnote: Coggs v. Bernard, Lord Raymond's Reports, 909.] Two of these opinions were confined to the precise point of law on which the case turned. In the third, Chief Justice Holt seized the opportunity to lay down the law of England as to all sorts of contracts arising out of the reception by one man of the goods of another. This he did mainly by setting forth what were the rules of the Roman law on the subject, but not referring to their Roman origin, and quoting them, so far as he could, from Bracton, an English legal writer of the thirteenth century, who had also stated them as English law.
For four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. Now the Chief Justice of England had given such recognition in the amplest manner. Meanwhile the trade of England had reached a point at which some definite rules on all these matters had become of the utmost importance. The bar were only too glad to advise their clients in accordance with Lord Holt's opinion. It was not long before it was universally practiced upon, and no case in the English language touching contract relations of that nature is of greater importance as a precedent. Yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which--whether at Rome or London--they cared little, so long as it had been accepted by the highest judicial authority in the realm.
On the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them.
Two of the great opinions of Chief Justice Marshall are Marbury v. Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens v. < previous next >