Page:Harvard Law Review Volume 12.djvu/570

550 55P HARVARD LAW REVIEW. cu instance was material and so the rule as to dying declarations has come in the course of one hundred and fifty years to be formu- lated and defined, not because the courts have usurped legislative functions, but because each court has been compelled to answer yes or no to every question of evidence which has been properly pre- sented, just as it must give judgment for the plaintiff or for the defendant in every case within its jurisdiction. Why is it not as correct to say that the law of dying declarations has been made by the courts, as to say that a statute is made by the legislature? When James C. Carter,^ discarding all other definitions, declares that law consists of " rules springing from the social standard of justice," what does he mean except that the judge like the legislator is a product of the soil ? The legis- lator of to-day does not make such laws as were made two hun- dred years ago, because the state of society to which he belongs is difTerent, But when we speak as lawyers and not as historians or philosophers, we say that the statute is made by the legislator and not that it is determined by the social standards of the time. The reason why we are so reluctant to say that our common law is made by the judge, is because of that old trouble with the word " law." We forget that since a judgment when used as a pre- cedent "has the effect of a real law" to say that a judge makes the law is simply to say that he renders a judgment which becomes a precedent. If then our law springs from our decided cases and from the use of cases as precedents, I know of no practical test of law as dis- tinguished from fact except that it is that part of the case which the judge chooses to decide and to decide in such a way that his decision may be used as a precedent for future cases. In order that a case may be available as a precedent, it is necessary that not only the conclusion but the premises from which the conclusion is drawn shall be recorded. Any number of records showing simply that judgment was entered for the plaintiff or for the de- fendant would be of no value as precedents ; and in precisely that way the verdict of the jury is always rendered. The jury may state their conclusions in detail as in a special verdict or may find generally for the plaintiff or for the defendant ; but the premises upon which their conclusion is based are never stated, and so careful are we that the verdict of the jury shall not be used as a 1 Address before the American Bar Association, August 21, 1890.