that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of the cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins. He must then fashion law for the litigants before him. In fashioning it for them, he will be fashioning it for others. The classic statement is Bacon's: "For many times, the things deduced to judgement may be meum and tuum, when the reason and consequence thereof may trench to point of estate."[1] The sentence of today will make the right and wrong of tomorrow. If the judge is to pronounce it wisely, some principles of selection there must be to guide him among all the potential judgements that compete for recognition.
In the life of the mind as in life elsewhere, there is a tendency toward the reproduction of kind. Every judgement has a generative power. It begets in its own image. Every precedent, in
- ↑ "Essay on Judicature."
