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Updated: May 2, 2025
A great original thinker, untrammelled by the schools, and independent of precedents, he saw nature before him, and studied closely all her developments.
He could favor whatever policy the Constitution required, or precedents favored, or public expediency demanded; if his enemies were to be believed, he could take whatever course ambition and self-interest impelled him to.
The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if required. In the first place, as we have seen, there was a century of precedents ending with Morse v. Slue, argued by Holt himself, in which the liability of masters of ships, hoymen, carriers, &c. had been adjudicated.
The Roman jurisprudence amounts to many hundreds of volumes, and its precedents range over many centuries, so that the most plodding lawyer and the most industrious judge may well despair of ever being able to tell exactly what the law says on any particular case, or of being able to find a clue to the true interpretation, granting that he sincerely wishes to do so, through the inextricable labyrinth of decisions by which he is to be guided.
The first laws had no law to enforce them; the first authority was constituted by itself. The power exercised by the house of commons is of this kind; a power rooted in the principles of government, and branched out by occasional practice; a power which necessity made just, and precedents have made legal.
The turbulent government of England, ever fluctuating between privilege and prerogative, would afford a variety of precedents, which might be pleaded on both sides.
What precedents did not Abraham, Jephthah and Jonadab the son of Rechab offer? How easy was it to quote and follow them in an age when few reasonable men or women doubted that every syllable of the Old Testament was taken down verbatim from the mouth of God.
Thus is laid the substantial foundation upon which the Art of War securely rests. It is perhaps advisable though it should be needless to say that, when a student has achieved such comprehension, when his mind has mastered the principles, and his memory is richly stored with well-ordered precedents, he is, in war, as in all other active pursuits of life, but at the beginning of his labors.
The theory is certainly one which would have had no precedent to recommend it, but to my mind it was just this that was its best recommendation; in fact, what was most needed was to avoid a repetition of the old fatal precedents which had turned so many futile revolts into glorious outbursts of patriotism. Just imagine the situation.
Guided in its conduct almost entirely by a policy of personal predilections, which is fitfully reinforced by the recollection of precedents, it is small wonder if such mountains of mistakes choke every Legation dossier.
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