Page:Harvard Law Review Volume 5.djvu/209

JUDICIAL LEGISLATION. 1 93 the rule of presumption passed over through the fiction of a lost grant into an absolute rule of law. 1 This general head, the action of the judge in presiding over the jury, in laying down rules of court, and the like, has a far more important connection with the growth of the law than has gener- ally been realized. To it whole topics in our law owe their very existence. The law of evidence, for example, a branch peculiar to our system, would never have developed but for the jury. It had its origin in great part, as historical investigation shows, in mere rules of court based on considerations of rough sense and practical convenience, — " that one who wished to produce a witness must get a good one," — " that if J. S. had anything to tell, he must tell it in person," and the like. To such simple beginnings we owe rules in which later writers have sought to find the expres- sion of theories of morality or systems of lo^ic. So the law of damages, which to-day assumes such large proportions, has been largely the product of the last two generations. A century ago the amount of damages was a question resting almost exclu- sively with the jury ; but as time went on the regulation of the jury's action in this particular became a necessity. From this su- pervision over excessive or inadequate verdicts, which the court has exercised in its d uty of keeping the subordinate tribunal within the bounds of reason, arose a set of rules based simply on justice and common sense, and from these in turn has developed what is now a complex and elaborate system. III. (a) Up to this point we have considered the common law, and the growth which is necessarily involved in the application of it. There remains the important question whether this sort of growth is confined to the common law. Bentham thought it al- together foreign to statute law. He regarded "judge made law" as an unmixed evil, which was to be entirely cut off by a perfect code. If the rule of law was once obtained the whole problem, as it presented itself to him, was answered. He seems to have thought of the facts as lying neatly classified, waiting for the law to be ap- plied. The application was a kind of mechanical process so simple that it could be dismissed from consideration. 2 The same idea 1 See Angus v. Dalton, 6 App. Cas. 740; 3 Harv. L. Rev. 183. In an article in 3 Harv. L. Rev. &,, other instances are given of this stiffening of presumptions into hard-and-fast rules, and also of the converse process by which an old rule sometimes • fades away " into mere evidence and matter of fact. 2 Compare Markby, Elements of Law (3d ed.), 26. 25