Dictum in legal terminology, dictum (plural dicta) is a statement of opinion or belief considered authoritative because of the dignity of the person making it, although it is not binding as law. Obiter dictum, Latin for "something said in passing", is such a comment made while delivering a judicial opinion, but unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).
The Dictionary of Legal Quotations (1904)Edit
- Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 71-72.
- How necessary it is carefully to consider the language of learned Judges, especially when you are dealing with language which is admitted to be only a dictum and not a decision, and when it is attempted to use that language for the purpose of founding on it an article of a code of law.
- James, L.J., Dawson v. Bank of Whitehaven (1877), L. R. 6 Ch. D. 226.
- Speaking for myself, I do not pay much attention to the dicta of modern Judges, as I consider it my duty to decide for myself. This, of course, does not apply to decisions of modern Judges, nor to old recognised dicta by eminent Judges.
- Jessel, M.R., Quilter v. Heady (1883), L. R. 23 C. D. 49.
- I never allow my construction of a plain enactment to be biassed in the slightest degree by any number of judicial decisions or dicta as to its meaning, when those decisions or dicta are not actually binding upon me. I read the Act for myself. If I think it clear I express my opinion about its meaning, as I consider I am bound to do. Of course, if other Judges have expressed different views as to the construction, and their decisions are binding on this Court, this Court has simply to bow and submit, whatever its own opinion may be. But when there is no such binding decision, in my view a Judge ought not to allow himself to be biassed in the construction of a plain Act of Parliament (for it appears to me to be plain) by any number of dicta or decisions which are not binding on him. The Judge ought with all due respect to examine into them, but he must not allow any number of dicta, or even decisions which are not binding on him, to affect his judgment, except in one peculiar case. That case is peculiar, and therefore I will mention it. Where a series of decisions in inferior Courts have put a construction on an Act of Parliament, and thus have made a law which men follow in their daily dealings, it has been held, even by the House of Lords, that it is better to adhere to the course of the decisions than to reverse them, because of the mischief which would result from such a proceeding. Of course, that requires two things, antiquity of decision, and the practice of mankind in conducting their affairs.
- Jessel, M.R., Ex parte Willey ; In re Wright (1883), L. R. 23 C. D. 127.
- In the books there are some loose dicta that an Act of Parliament and the common law should respectively stand as originals according to the circumstances of the case; but this is not law, unless it be confined to prohibitions for excess of jurisdiction and to restrain waste.— Heath, J., Jefferson v. Bishop of Durham (1797), 2 Bos. & Pull. 129.
- There are old dicta of great Judges, which have been followed by many decisions and have become maxims of the law; but modern dicta are but attempts to embody in a short form the result of decisions or statutes which any lawyer can examine for himself.
- Kay, L.J., Dashwood v. Magniac (1891), L. R. 3 C. D. 376.
The Dictionary of Legal Quotations (1904)Edit
- Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 184-186.
1. I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.-Bowen, L.J., Cooke v. New River Co. (1888), L. R. 38 C. D. 70.
2. This mere obiter opinion ought not to weigh against the settled direct authority of the cases which have been deliberately and upon argument determined the other way.—Lord Mansfield, Saunderson v. Rowles (1766), 4 Burr. Part IV. 2069. See also Dictum, 4.
1 Thus the Law Times: "We are very glad to hear it, and trust that Her Majesty's Judges will note and remember this piece of forensic natural history."— L. T. Jour., 1888, p. 272.
"Obiter Dicta," said John A. Finch at the recent banquet of the Indiana State Bar Association, "is not statutory Latin, and we have no information as to how the words would have been translated by the Commissioners who prepared our first Code, had they been required to make such an attempt. The law dictionaries and the Courts translate these words as a phrase, and give us rather an exegesis than a translation. 'Dicta,' says a Judge of the New York Court of Appeals,' are opinions of a Judge which do not embody the resolution or determination of the Court, and made without argument or full consideration of the point; they are not the professed, deliberate determinations of the Judge himself. ' Obiter dicta,' he says, 'are such opinions, uttered by the way, not upon the point or question pending, as if drawn aside for the time from the main topic of the case to collateral subjects.'
"An old Judge is quoted as saying, 'An obiter dictum, in the language of the law, is a gratuitous opinion, an individual impertinence.'
"I am not much of a dictionary maker, but I believe I could improve upon either and say, 'An obiter dictum is the passing opinion of a Judge expressed when it is not called for.'
"A great Judge was asked, 'What is the difference between law and equity 1' 'Very little in the end,' responded his lordship; 'at common law you are done for at once; in equity you are not so easily disposed of. The former is a bullet which is instantaneously and charmingly effective; the latter, the angler's hook, which plays with the victim before it kills him. Common law is prussic acid, equity is laudanum.'
"Whether a man goes down with a law bullet in a vital part or is wearied out as is the fish before being landed, where he may gasp his life out; whether he dies with one convulsion after a swallow of prussic acid or dreamily passes away in the solace of an opium overdraught, is perhaps no matter in the end. In the processes there is a vast difference, but the tombstones—the reports of that Court which has the last say—read very much alike. The figure is, perhaps, not a bad one.
"There is a deal of difference in what should be on the monument and what is on it, and there is equal difference in what should be in the opinions of the Courts of last resort and what the Judges speaking for the Court find time to inject. The elegies and eulogies on the plain memorial slab and the massive monument are often obiter—not meant seriously—and superfluous. The Judges of the law Courts in bank and the Chancellors in their meditative chambers are as much given to superfluous utterances as are the postmortem inscription in marble. Obiter dicta is a vice common to both.
"A child wandering in a cemetery, after reading the effusive inscriptions, all too superfluous after the statement that a dead man is below, asks where the bad people are buried. A reader of reports, searching for authority, sighs that so much is said when so much less would amply suffice.
"We are taught that we may disregard all obiter dicta, but, as we are never sure what the law in a given case is until some Court has given an opinion in the reports, equally are we never sure what is unnecessary law, the obiter dicta of an opinion, until some later Court so informs us. That which we have for years quoted as authority is, in later expressions, stripped of its conclusiveness and made simply an impertinence. Not only does the superfluous expression which has been cited or acted upon as decisive become indecisive, it becomes a reproach to the Judge who wrote it.
"This sort of thing reminds one of what Artemus Ward said in his lecture on the Mormons: 'One of the principal features of my entertainment is that it contains so many things that don't have anything to do with it.' We have been succeeding or failing because of something in an opinion which turns out to have no right to a place in the judicial utterance. A man who has carefully wound up his clock every night for twenty years and then learns that it is an eight-day clock has less reason for feeling bad than a lawyer who has lost a case or been guided in advice given by something that turns out to be obiter.
"After having bowed to the supposed law, as found in an opinion of a High Court for years, we are suddenly told that the Judge who wrote the opinion was 'off his base,' so to speak, and what he said was not the law at all, or, at least, he had no business to have then said it was the law.
"Take the case of the Home Insurance Company v. Morse, in which the Supreme Court of the United States held that a statute of Wisconsin requiring an insurance company of another State to agree that it would not remove a case against it to the United States Circuit Court was 'illegal and void' and therefore not binding on the company. Then read, and rub your eyes as you read, the same Court in Doyle v. The Continental Insurance Company, in which it was held that the State may prescribe any condition that it may deem proper, whether constitutional or not, upon which corporations of other States may enter its borders, using language which was long held as a sword over companies that contemplated taking a case to the United States Circuit Court in that State, or iD other States having a like statute. Years afterwards we have from the same Court Barron v. linrnside, in which it was held that the ominous part of Doyle v. The Continental Insurance Company was obiter dictum; liolding further that no conditions can be imposed by a State upon corporations foreign to it which are repugnant to the Constitution and laws of the United states. Such an episode reminds one of the trick on Falstaff that was 'argument for a week, laughter for a month, and a jest for ever.'
"Borne says, 'Nothing is permanent but change.' And so we have to say of the law. We can never rest secure upon any opinion until we have searched later reports for an opinion modifying or reversing it or declaring some of its vital parts obiter dicta.
"Polonius asked Hamlet what he was reading. 'Words, words, words,' said Hamlet, and called the writer a ' satirical rogue.' Ben Butler was seen in a railroad train reading what appeared to be a law book, and was asked, 'Are you reading law, general?' 'No,' haid he; 'only a volume of Massachusetts reports.'
"There are 166 volumes of Massachusetts reports, 165 volumes of United States Supreme Court reports, and hundreds and thousands of reports of other States. Every year adds to the reports of the Courts of this country about 250 volumes and about sixty volumes of text-books. 'Words, words, words.' Ben Butler to the contrary notwithstanding, all of these words are law unless they have been pronounced obiter dicta.
"Does anybody believe we can allow our presses to go on for ever belching out books that are of such value that every lawyer must know what is or what is not in the motley throng before he can feel safe? Nay, verily. There must, in some way, from somewhere, come relief.
"The supposed great library at Alexandria was destroyed by the men of Mohammed for the, to them, satisfactory reason that if the books in it agreed with the Koran they were unnecessary, and if they did not agree with it they were unsound. Will ever some devoted advocate or some legions of such devotees of the real law—the red-eyed kind, if you please —arise and settle this question by a conflagration?
"Oliver WendellHolmes said he doubted not that if all the medicines in the world were dumped into the sea it would be a great deal better for the human family, though a great deal worse for the fishes. Somesuch remark could be made about our voluminous libraries. If something violent should happen to all the law reports now crowding our shelves, and all, or nearly all, of the books of alleged authors on particular branches of the law—such books being in the main: ^^ scissors, paste-pot, week drudge—wou
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written books, lots of them ; too many of them such as they are ; and the spoiling of paper goes merrily on. 'Much study is a weariness of the flesh," it is true, but winnowing chaff for an occasional grain of wheat is more weariness still. Are we for ever to roll at the ever increasing stone of Sisyphus, or shall we make some effort to relieve ourselves and our successors?
I am myself a lecturer on a branch of the law in a reputable law college. At the beginning of my course, or at the end, or, mayhap, many times ad interim, I tell my classes there is no logical, coherent, justifiable law on the subject; that there are decisions galore, and that those decisions will control in the trial Courts, not because they are right, but because they are decisions bound in calf, or sheep, or hide of some other animal. I advise them to search well these volumes in animal skin, and say that the lawyer who finds most opinions leaning his way will succeed the best. It is not a question of logic or elementary law of the sort that is the 'perfection of reason.' It is simply a question of numerical strength. 'The Lord is on the side of the heaviest battalions,' said Napoleon.
"Indiana has more Courts and more Judges and annually issues more reports than all England. Our reports seem to get more voluminous and contain less law. The first volume of Blackford has 432 pages and contains 504 cases. The last volume of Indiana reports has 700 pages and 179 cases. Comparison of the first and 'last volume of reports of any other State will show like numerical results. Does this signify? Yes, verily, it does signify. It signifies all too much. Do lawyers at the bar or Judges on the bench carefully reason or copiously remember 1 Is the law a matter of reasoning, or is it a matter of searching for cases in point?
"Obiter dicta might be applied to many a volume in its entirety, to many a page of opinion for its mere prolixity.
"Men and brethren, what shall we do to be saved." *
- Albany Law Journal.—See Law Times, Nov. 6, 1897, p. 16.