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Montana Law Review




Decius S. Wade played important roles in Montana's legal history as Chief Justice of the Territorial Supreme Court (1871- 1887), member of the Code Commission (1890-1895), and prominent lawyer. Wade wrote The Common Law sometime in late 1894 or early 1895 for a February 1895 address to Helena bar members celebrating the 1895 passage of the Civil, Political, Penal, and Civil Procedure Codes by the Montana Legislature. Although I disagree with much of Wade's analysis, his manuscript deserves attention now for two reasons.

First, Wade played a critical role in the development of Montana's legal system and his views on the law remain relevant. Wade wrote more than half of the first six volumes of the Montana Reports as Territorial Chief Justice. His contemporaries found his opinions "had much to do with perfecting the practice of law in the courts of Montana."2 Decius Wade also played a significant role in the 1895 codification of Montana's law, both as a member of the Code Commission and as a bar leader. Wade's 1894 speech in favor of codification, for example, played an important role in the Codes' passage. Wade's views on the common law's relationship with codified law are thus still relevant to understanding Montana law, and the Codes in particular, today. Second, Montana's nineteenth century legal history is regrettably sparse and relatively few of Wade's papers have survived. Because this manuscript presents a synthesis of Wade's thoughts on a central feature of Anglo-American jurisprudence, and one undergoing a significant change in Montana when he wrote, The Common Law is an important historical document. Moreover, its significance is enhanced because evidence of American legal culture in general in this period is lacking.

Because I believe The Common Law is best presented as a historical document, I provide it relatively unedited, opting instead to annotate in footnotes. Since Wade's original manuscript contains no footnotes, all footnote material is my annotation.

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Montana State University Law School Association

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