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there is often little opportunity for changes by the judiciary. (Dicey, Law and Opinion in England, Appendix, p. 486.)

The decision of a special case by a principle already laid down is a process of reasoning from the general to the particular. New applications of old principles are continually arising in the trial of law suits. The only restraint upon judicial power is that the judges must keep within the limits of existing law. Under any law there must be a great amount of discretionary power left to them. But a judge may not be permitted to decide according to his own will or caprice, because then his decisions are his personal arbitrary edicts and nothing more. If honest, they may be according to his own untrained notions of justice; if dishonest, such a course results in the worst of tyranny. The wisdom of the law, based on the learning and experience of centuries, is greater than the wisdom of any individual. (Lord Hale in Dillon's Laws and Jurisprudence of England and America, p. 172, note.)

To the judge driven with the work of considering and deciding cases, with all their multiplicity of details, and many of them far-reaching in their results, few things, it seems to me, can be as helpful as to pause, now and then, in the daily routine, and study what has been said by such men as Prof. Gray in his lecture on the “Nature and Sources of the Law”; Judge Dillon in “The Laws and Jurisprudence of England and America”; Thayer's “Legal Essays ”; James C. Carter on “The Law; Its Origin, Growth and Functions ”; Dicey's “ Law and Opinion in England ”; Pollock's “ Essays on Jurisprudence and Ethics”; Prof. Hammond's notes on “Blackstone's Commentaries,” or to read some of the learned and searching articles in the leading law magazines of today. Judges who without prejudice approach the study of these subjects cannot escape the conclusion that the courts—in many cases necessarily “make the law," as that term is ordinarily understood. Even in the work of interpreting statutes—and especially when extending them to cases without their letter, but within their reason and spirit—the judges actually, though indirectly, are engaged in a certain kind of judicial legislation. One of the great lawyers of this country, named by President Cleveland for a place on the Supreme Bench of the United States, gave an address a few years ago in which he maintained with much force that judge-made law was far superior

to that enacted by ordinary legislative bodies. (William B. Hornblower, Columbia Law Review, p. 453.) A prominent legal authority has stated that a large part, and the best part, of the law of England is judge-made law-consisting of rules collected from the judgments of the courts. (Dicey, Law and Opinion in England, p. 359.) President Wilson, in his address of welcome to the American Bar Association at Washington, last fall, said: “ There was a time when the thoughtful eye of the judge rested upon the changes of social circumstances and almost palpably saw the law arise out of human life. Have we got to a time when the only way to change law is by statute? The changing of law by statute seems to me like mending a garment by a patch, whereas the law should grow by the life that is in it, and not by the life that is outside of it.”

Lawyers are familiar with the fact that the establishment of equity practice and jurisprudence was largely the work of the courts and not of Parliament or legislature. Legal historians assert that Lord Mansfield, with wonderful far-sightedness, applied the customs and rules of business and trade to the building up of the great body of commercial law. In the same way Judge Story is credited with creating the admiralty law of this country. The courts of England before the nineteenth century gradually worked into their decisions the principle that an employer was liable to a third person for damage inflicted upon him through the negligence of the employer's servant, and in the same manner they have in more recent years limited the extent of the employer's liability by the “fellow servant” doctrine. Recently the courts have created a great body of insurance law by applying to the new circumstances surrounding the different classes of insurance, the legal principles embodied for generations in the common law. A few years since, in one of the leading law reviews, a lawyer in active criminal practice argued at length that the courts had made the law of criminal conspiracy (37 American Law Review, p. 33) and had entirely overthrown, or at least superseded, the common law as to that crime.

Every person who has served as a member of a court of last resort will bear witness to the fact that on the decision of most important questions, the members of those courts frequently divide, not because the general principles of the law are not well known and agreed upon by them, but because they differ in the application of those principles. These differences are found not only in applying the principles of the common law to the facts of a given case, but in construing statutes and constitutions. Prof. Thayer has said “ Courts often have to recognize, especially in the region of constitutional law, that there is more than one reasonable and allowable interpretation of a thing." (Thayer's Legal Essays, p. 150.) Many of the decisions that have had the most far-reaching effect upon the law of this and other countries have been handed down by a divided court. Among such cases in England are: Egerton vs. Brownlow, 4 H. of L. Cases, p. 1, involving vested and contingent interests; Jefferys vs. Boosey, 4 H. of L. Cases, p. 815, as to copyrights; and Allen vs. Flood, Law Reports, Appeal Cases (1898), p. 1, involving the right of courts to interfere in labor disputes. Among such cases decided by the Supreme Court of this country, we need only call attention to the Dartmouth College case, 17 U. S. 517, in which it was held that a charter of a college was a contract and that no state could pass a law impairing rights thereunder; the “ Dred Scott" case, 60 U. S. 393, discussing at length the rights of the colored race under the Constitution; the two Legal Tender cases, Hepburn vs. Griswold, 75 U. S. 603; Knox vs. Lee, 79 U. S. 457 —the former holding that the legal tender act was unconstitutional, the latter-made after the personnel of the court had changed by the appointment of two new judges—reversing the former decision and holding the law constitutional; the Income Tax case (Pollock vs. Farmer's Loan & Trust Co., 158 U. S. 601) in which it was held that the United States Government could not levy that tax on the income of real or personal property, as it was a direct tax within the meaning of the Constitution.

I have examined the decisions rendered in recent years by the courts of last resort of most of the states of the Union and find the same situation in all of them when they were dealing with some of the most important public questions that have come before such courts. I have here a list of some of these cases, but time will not permit a detailed reference. Many of them involve the construction of the constitution of the particular state in which the decision was rendered, and in most of them some public

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question has been brought up for decision which made it necessary for the court to pass upon the question of due process of law, public policy or the police power of the state. Nor hould it be any matter of surprise that the courts have divided on such questions, when everyone knows that the legal limits as to due process of law, police power and the public policy of the state are not, and cannot be, clearly defined by the decisions of any court or the statutes of any legislative body.

Law has never been, is not, and cannot be, an exact science. We need to attain, so far as possible, certainty in the law, but necessarily—with changing conditions—the law must also be elastic in order to fit those conditions. No man or body of men, by statute or decision, can anticipate all the needs of the future. One of the greatest merits of our Federal Constitution, wherein our forefathers builded better than they knew, is that it is so well fitted by its general terms to meet the needs of a great people under all circumstances and conditions. (Thayer's Legal Essays, p. 159.)

The sooner lawyers and judges recognize that, by whatever name that process is called, law is developed through judicial decisions, the courts being aided by the arguments of counsel and of text-book writers, the better it will be for our profession and for the administration of justice. The members of this organization cannot afford to be prejudiced against the study of jurisprudence because now and then it is found that a selfstyled jurist, a teacher or writer on the subject of law, has made himself, as Dicey has stated “master of no one legal system in particular, whilst his boasted science consists in the enunciation of platitudes, which if they ought, as he insists to be law everywhere cannot in fact be shown to be law anywhere.(5 Law Magazine and Review, 4th Series, p. 382.) For anyone who wishes to be something more than a mere servile follower of forms, bound down by fine drawn technicalities, must become familiar with the jurisprudence, at least of the common law, and if possible of the civil law also. Nothing, as Gray has said, is more to be desired than that “judges and jurists should mould and guide the law to make it correspond to the needs of society

... but judges and jurists are men of their time and they should not set about consciously” to develop the law in any

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particular subject or particular manner. (Gray, Nature and Sources of Law, p. 4.)

Even the most distinguished of our lawyers and judges are too apt to look down upon any resort in legal arguments to elementary principles of law. In the past too little attention has been given in our law schools to the scientific study of the fundamental principles upon which the law is based. I agree with the statement of one of our country's great practising lawyers, to whom I have already referred, that “to eulogize the law as one of the highest of human sciences, and yet neglect to inquire what kind of science it is .... is an inconsistency” of which the legal profession should not be guilty.

I have assisted in a small way in the organization of this Section because of my belief that we could thereby cause the judges of our country to undertake a more careful study and consideration of the basic principles of the law—to cease to study only “case law” in deciding the litigation before them, and to remember that the principles they announced in a decision may have reference not only to that case, but


have reaching influence in the decision of litigation arising many years in the future. An undue reliance on case law has a tendency to make the rule of law identical with the mere point cited in a given case and thus relieve the practitioner and the court from attempting to seek for underlying principles. (1 Hammond's Blackstone's Commentaries, p. 215.) Our judges should see to it that the criticism of the English Common Law made by Lord Coleridge, on his visit here thirty years ago, should not be applicable in this country; he said that the common law had become associated in the minds of most people “ with narrow technicality and substantial injusticeand with the belief that in its practice “ the science of statement was far more important than the substance of the right, and that the rights of litigants themselves were comparatively unimportant unless they illustrated some obscure, interesting and subtle point.” (Dillon's Laws and Jurisprudence of England and America, p. 185, note.) The judiciary of this country, assisted by the legal profession, can in a large measure so administer the law that it will conform to the genius of our institutions and satisfy the needs of justice.

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