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come from judgments which are directed by the individual will
alone, every one of which must stand by itself on its own reasons,
must be submitted to without question, and will be attributed to
good motives or bad, to wisdom or caprice, to judgment or pas-
sion, according to the views which are held by the people or
by individuals concerning the ruler who gives it. But where
rights are defined and regulated by durable laws, respect and
obedience become habitual, and there is at length a spontaneous
conformity of action thereto which deprives the numerous
restraints of the law of all seeming hardship that might have
been felt originally. The restraints come to be understood and
appreciated in their true character as being severally the repre-
sentatives of rights secured and protected, and the feeling they
give is one of security rather than of restiveness and oppression.
The restraints and the liberty of the people will progress together,
so that the restraints will be most numerous where rights are most
fully recognized and most perfectly protected; and if the laws are
impartial, even peculiar privileges which fall to the possession of
the few will be cheerfully acquiesced in by the many, because they
will be granted on a consideration of what is best for the
whole political society, so that though the few may *receive [*11]
the direct benefit, all others will be supposed to receive
incidental benefits sufficient to justify the grant of such privileges.'
Growth of Rights. Some reference to the progressive growth
of rights seems required by the subject. Historically, this
is always obscure and can only imperfectly be traced. In
most countries rights, in their origin, are traditionary rather
than statutory. With us, as will be more fully shown hereafter,
they have always rested in the main upon what we call the com-
mon law, and upon principles which, by a liberal use of fiction,
we assume have always constituted a part of this common law.
A common law was unquestionably in existence during the
period of the Saxon kings, and it supplied the rule of right and
property under the arbitrary Normans to an extent sufficient
to continue to it that attachment of the people which had been
cherished before the Conquest. The Great Charter was a guaranty

'1 Bl. Com. 467; A. & A. on Corp., §13; Aldridge v. Railroad Co., 2 Stew. & Port. 199; Dunghdrill v. Ala. Life Ins. Co., 31 Ala. 91; Curries' Admr.

v. Mutual Assurance Society, 4 Hen. & M. 347; Dartmouth College . Woodward, 4 Wheat. 518, 637.

of its principles rather than a new grant. It was a useful code in barbarous and despotic periods, and it has not been any the less so in enlightened periods and under free governments. But in order that it may be continuously useful the progressive changes must be great and numerous, so great and so numerous that it could only be by the most enlarged intendment that the law of to-day could be recognized as the common law of even the time of Lord Coke. In fact, its principles now depend very largely on a species of judicial legislation which from time to time, as new conditions were found to exist, has endeavored to fit and conform the old law to them.

In making use of this term, judicial legislation, we encounter prejudices which have for their foundation much apparent reason. The term seems in itself a contradiction; judicial action is one thing, legislation is another, and by the theory and practice of our government we seek to make them stand distinctly apart, and require that their exercise shall be in different hands. Legislation by the judiciary must consequently consist in an invasion of the province of another department of the government, and is properly denominated usurpation. But there is another

sense in which judicial legislation may be understood, {*12] *in which it seems to be a necessary condition of any steady

improvement in the law, and, therefore, deserving of no censure. A few suggestions by way of indicating what this is will be all we care at this time to make, and these will relate to the method by which the common law of any country is usually developed.

It is impossible to conceive of any condition of organized society, even the most primitive, in which some rights will not be recognized; the right, for instance, of every man to his life, to the implements by the aid of which he secures the means of sustaining life, to the results of the chase, or of his rude agriculture, and to form family relations. But between those possessing such rights there must necessarily be some common arbiter of controversies, and every people will select this common arbiter with some reference to a supposed superior wisdom or superior experience, such as will enable him to draw clear and accurate conclusions where others would hesitate, or perhaps find themselves wholly at fault. It would be the business of such an arbiter to determine the application of the law to the facts of any case brought before him, and he must either find an existing rule

which governs the case, or he must withhold decision until the competent authority can legislate and establish one. The latter course, in many cases, would be equivalent to remanding the parties, as regards the pending controversy, to a condition like that preceding established government; a condition in which violence would be invited, because no peaceful remedy was attainable. It would consequently be wholly inadmissible. The alternative would be the acceptance of the principle that the existing law governs all cases, and that the ruling principle for any existing controversy will be found, if sought for. This is substantially what is done by the English common law; and with this principle accepted, rights have grown up under judicial regulation, and through judicial definition, much more than under legislation properly so designated. The code of to-day is therefore to be traced rather in the spirit of judicial decisions than in the letter of the statute. The process of growth has been something like the following: Every principle declared by a court in giving judgment is supposed to be a principle more or less general in its application, and which is applied under the facts. of the case, because, in the opinion of the court, the facts bring the case within the principle. The case is not the measure of *the principle; it does not limit and confine it within the [*13] exact facts, but it furnishes an illustration of the principle, which, perhaps, might still have been applied, had some of the facts been different. Thus, one by one, important principles become recognized, through adjudications which illustrate them, and which constitute authoritative evidence of what the law is when other cases shall arise. But cases are seldom exactly alike in their facts; they are, on the contrary, infinite in their diversities; and as numerous controversies on differing facts are found to be within the reach of the same general principle, the principle seems to grow and expand, and does actually become more comprehensive, though so steadily and insensibly under legitimate judicial treatment that for the time the expansion passes unobserved. But new and peculiar cases must also arise from time to time, for which the courts must find the governing principle, and these may either be referred to some principle previously declared, or to some one which now, for the first time, there is occasion to apply. But a principle newly applied is not supposed to be a new principle; on the contrary, it is assumed

that from time immemorial it has constituted a part of the common law of the land, and that it has only not been applied before, because no occasion has arisen for its application. This assumption is the very ground work and justification for its being applied at all; because the creation of new rules of law, by whatsoever authority, can be nothing else than legislation; and the principle now announced for the first time must always be so far in harmony with the great body of the law that it may naturally be taken and deemed to be a component part of it, as the decision assumes it to be. Thus a species of judicial legislation, proper and legitimate in itself, because it is absolutely essential to a systematic adjudication of rights, goes on regularly, and without interruption; and up to the present time, in England and America, it has been not only more efficient, but also more useful, in establishing the rules by which private rights are to be determined, and in giving remedies for their violation, than has been the regular and formal enactment of laws. If we consider in detail any one branch of the law, that, for instance, of wrongs by negligence, the examination would render this truth very manifest. Statutes have provided for some new cases; they have changed

the common law in some particulars in which, under new [*14] *circumstances, a change which was not within the compass

of legitimate judicial action seemed essential; they have given a private remedy in some cases where the common law gives none; as, for instance, where death has resulted from a wrongful act or default; and they have taken away remedies in some cases as, for instance, that which the common law gave against the owner of a house for a fire accidentally originating in it.' But even in these cases the statutes have been left for explanation to the rules of the common law; they have given rights which can only be understood in the light of common law principles. In some cases, also, the statutory law has forbidden the doing of certain acts, and the common law, as administered by the courts, has supplemented this action by giving remedies to private parties who are injured by a disregard of the statutory prohibition. In these cases the statute law may be said to lean upon and receive aid from the common law; but in the vast majority of all the

Tuberville v. Stamp, 1 Comyn R. 32; S. C. 2 Salk, 647; Filliter v. Phippard, 11 Q. B. 347.

cases in which remedies are given for wrongs committed, the judge looks only to the common law, and must administer justice on principles which have grown up irrespective of statutes, and which, no matter how recently announced, are assumed to have existed from time immemorial.

The common law is generally said to consist in the established usages of the people, by which their respective rights are recog nized and limited, and to which they are expected to conform in their dealings. This definition is quite sufficient for all ordinary purposes; but if considered critically, it is inaccurate in this: That it fails to comprehend those cases which are disposed of under the common law, in respect to which there can be no established usage, because the cases themselves are entirely new. The usage in such a case must come after the decision has established the principle, and it must have followed the decision as a result, instead of preceding it as a cause or reason. With these cases in view, it will be evident that the common law is something more than a body of usages; it is that, indeed, but it also embraces the principles which underlie the usages, or which so harmonize with them that the courts are justified in accepting them as the *basis for judicial action, and as forming with the usages a [*15] consistent body of law. Thus a very considerable proportion of the common law has had its real origin in judicial action, which has accepted many things for law, and rejected many others, and by a sifting proces has made the law what we find it now. The growth of the law under this treatment has been so moderate, so steady, and so beneficent as to afford no small justification for the hearty praise that so often has been bestowed upon it. It has been modified and expanded under the decisions, but the changes effected by or through the influence of any particular decision have been such only as it was believed did not disturb the general harmony of the law, and such as could be justified as being rather a new illustration of the law as it was, than an alteration of it. In this steady and almost imperceptible change must be found the chief advantages of a judicial development of the law over a statutory development; the one can work no great or sudden changes; the other can, and frequently does, make such as are not only violent, but premature. A large share of

Cooley, Const. Lim. 22-24, and cases cited, Le Barron v. Le Barron,

35 Vt. 365; Commonwealth v. Churchill, 2 Met. (Ky.) 118.

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