Page:Harvard Law Review Volume 12.djvu/568

548 548 HARVARD LAW REVIEW. himself such and acknowledged as such." It is quite natural that two things which produce the same effect should be called by the same name, and it is only when we are looking at the cause instead of the effect that this poverty of language gets us into trouble. That it does get us into trouble at times there can be no doubt. For example, in assuming that it is the duty of the judge simply to declare and apply the law we are compelled to look for the out- side source of supply. We go back as far as we can, and failing to find it, assume with Blackstone that it is prehistoric, and that all traces of it have been effaced except as they have been preserved in the records of the courts. And yet we know all the while that nine-tenths of our law has arisen within the last two hundred years, and that if we were to search the Year Books for an answer to the questions of law which our clients put to us, we should get no help whatever. The assumption too that the courts have any special mission to " declare the law " is contradicted in every volume of our reports. The courts are constantly enlarging, cutting down or denying altogether rules which have been stated in the earlier cases, and they do it with entire freedom. Thus Gray, C. J., disposes of such rules by saying that they are "suggestions" made "by way of argument only and not of adjudication." ^ Again we hear one judge referring to the decision of another as an act of legislation, but where shall we find a judge willing to admit that he himself is legislating? The fact is that in the sense in which any judge legislates every judge legislates, and he is compelled to legislate because he is bound to decide the case before him and so to establish a new precedent. Markby (Elements of Law, s. 26) calls attention to the provision of the French Code, which makes it penal offence for a judge to refuse to give a decision upon the ground of the silence or the insufficiency of the law. Without this statutory compulsion has any one ever heard of a common law judge who refused to render judgment, because there was no law applicable to the case? So long as the practice of reporting cases and using them as precedents continues, judicial legislation is not a usurpation of power. It is inherent in the strict performance of judicial duty. We speak of the principles of equity as things which the early Lord Chancellors were accustomed to manufacture out of hand, 1 Hall V. EUss, 118 Mass. 560.