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196 196 HARVARD LAW REVIEW. or a later promise waives the Statute of Limitations; the rule which reads a condition into the mind of a testator, and says in certain cases that a will destroyed under a misapprehension is not destroyed ; the proposition that a legatee may by a murder revoke the will, 1 — alike illustrate the fact that courts will not refuse to supply gaps which they conceive to have escaped the eye of the legislator. The remark attributed to Baron Martin, " Never mind the act of Parliament; take it away; the man who drew that act knew nothing about the law of England," 2 is only the bolder statement of a doctrine upon which courts have more than once proceeded. 3 But aside from such extreme cases, it is only neces- sary to call to mind the law in connection with any of our famous statutes to see what the process of definition and application really means. Take the mass of cases bearing on the simple- looking words "in the presence of" in the Statute of Wills, or a "promise to answer for the debt or default of another" in the Statute of Frauds, the learning brought to bear on the subject, the subsidiary rules which have grown up to determine whether a witness is in the presence of the testator, or whether a promise is one of suretyship. Take the dozen lines of the Statute of Frauds, section 17, a redraft of which by learned persons 4 takes the form of fourteen propositions, any one of them longer than the orig- inal section. Or as an extreme illustration, take the rules which have grown out of the decisions of our Supreme Court (when expounding that law/or the legislature which in this country is the only " command of the sovereign " in a literal sense), on the clause of the Constitution which gives Congress power to regu- late interstate and foreign commerce. (b) This necessary growth of statute as well as common law by its application has an importance far beyond what might appear at first sight. This is because of its bearing on the codification question. Bentham, as we have seen, dealt with this question as a choice between the law of a code on the one hand and judge- 1 Riggs v. Palmer, 115 N. Y. 506; Shellenberger v. Ransom, 47 N. W. Rep. 700 (Neb. 1891). But see 4 Harv. L. Rev. 394. 2 A Generation of Judges, by their Reporter, 87. 8 See, for example, Avery v. Latimer, 14 Ohio, 542, where, in a collision between custom and a statute, the court gave the right of way to the former, saying : " It would hardly be consistent or proper for us to change it [the custom] because it does not exactly accord with our ideas of a proper construction of the statute." 4 1 Law Quarterly Rev. 1.