"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."
In legal writing, a dictum is a statement made by a court. It may or may not be binding as a precedent.
"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."
"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."
"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."
"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."
"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."
"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."