Page:Harvard Law Review Volume 5.djvu/196

180 HARVARD LAW REVIEW. stigmatized as the " childish fiction " * that they were " not dele- gated to pronounce a new law, but to maintain and expound the old one." 2 This idea of applying the existing law, a body of "statutes worn out by time," as Chief Justice Willes called the common law, 3 appears everywhere in our reports. 4 The judges constantly stop short of the most tempting equity 5 with the declaration that they are to declare, not to make, the rule of law. Nothing could be more radically different from this attitude than the position of judges sent out to decide controversies according to their own judgment in each particular case, the mere abitrium boni viri. 6 Even such a declaration as that of the French code, which forbids the judges, under a penalty, to let any case fail for lack of law, 7 would be incomprehensible to an English judge, if intended to mean anything more than a just and wise application of the com- mon law, a process which he regards as declaring the law. The views of the judges on this subject must not, it is true, be ac- cepted too absolutely, for a striking feature of the common law has been the steady development along its characteristic lines, unaffected by the theories of its expounders. In case of any conflict between theory and the traditional methods, the courts have been able conveniently to slough the former, and have pro- ceeded as their predecessors did before them. 8 Only by a study 1 " The childish fiction employed by our judges that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges." Austin's Jurisprudence (4th ed.), 2,655. 2 Blackstone's Corns., I. 69. 8 2 Wils. 348. See Christian's notes to Blackstone, s. 3. 4 The common-law theory is stated and expounded by Chief Justice Shaw in Norway Plains Co. v. B. & M. R.R. Co., 1 Gray, 263, 267, and Com. v. Temple, 14 Gray, 69, 74. 6 See Hammond's notes to Blackstone, I. 216. 6 Such appears to have been the situation in certain temporary courts created after the Great Fire of London by St. 18-19 Car. II. c. 8, s. 25. 7 Code Civ., art. 4; see Markby's Elements of Law (3d ed.), s. 26. 8 So Lord Chief Justice Keble said the law of England was "the very consequence of the very decalogue itself," " as really and truly the law of God as any Scripture phrase," and that " whatever was not consonant to the law of God in Scripture " was "not the law of England, but the error of the party which did pronounce it." (5 How. St. Tr. 172.) Yet he would have had no difficulty in denying that it was slander to accuse a pure woman of unchastity ; and if the obligee of a bond paid before the day had con- trived to regain the instrument, the Chief Justice (or at least his predecessors) would have been likely to resent the interference of equity to prevent a second payment. In- deed, a "serjeant of the law of England" is represented in the 16th century as saying of this very form of equitable relief : " And so me seemeth that it is not only against the