Page:Harvard Law Review Volume 8.djvu/344

328 328 HARVARD LAW REVIEW. SWIFT V. TYSON versus GELPCKE v. DUBUQUE. SO much has been written and spoken about the cases of Swift V. Tyson/ and Gelpcke v. Dubuque,^ that as subjects of legal discussion they may well seem exhausted. The recent publication, however, of various addresses and essays ^ recalling the attention of lawyers to the question of judicial legislation, and especially to the question of the real nature and effect of judicial action in the decision of a case not controlled by statute or precedent, has prompted a consideration of these cases, as related to each other, and as indicative of the position assumed by the Supreme Court of the United States with respect to this long mooted controversy. The point in dispute is clearly and briefly defined by what may be called a comparison of the pleadings ; that is, by contrasting the propositions advanced on either side by the advocates engaged. In the introduction to his Commentaries Blackstone asserts that a judge " is not delegated to pronounce a new law, but to maintain and expound the old one," ^ and defines the effect of a decision overruled by stating that " if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law."^ The decisions of courts of justice, according to him, are only " the evidence of what is common law," ^ and " the judge is only to declare and pronounce, not to make and new-model the law." '^ At a time when a comprehensive and sys- tematic view of the principles of the common law was itself a novelty, and the study of the philosophy of the law hardly had a beginning in England, these opinions met the approval of the very 1 i6 Peters, i. "^ x Wallace, 175. " Provinces of the Written and Unwritten Law " and " The Ideal and the Actual in the Law." Addresses by Mr. James C. Carter. Prof. W. G. Hammond's Notes to Blackstone's Commentaries (1890), Vol. I. p. 213 et seq. "Judicial Legislation : Its Legitimate Function in the Development of the Common Law." Mr. E. R. Thayer. 5 Harv. Law Rev. 172. " Some Definitions and Questions in Jurisprudence." Prof. J. C. Gray. 6 Harv. Law Rev. 21.
 * Among others the following : —
 * Page 70. 6 Page 70. • Page 71. ' Book 3, p. 327.