Page:Harvard Law Review Volume 12.djvu/569

LAW AND FACT. 549 but we say that now this creative power is gone and that the prin- ciples of equity are as fixed and rigid as the principles of law. It is the old case of the growing tree. You may stand and watch that tree for an hour and see no sign of growth, and yet you know that the tree is a good deal bigger than it was ten years ago and that the same vital force which drew that tree from the soil is now extending its branches. The apple-tree cannot grow back again into the ground and start as a pear-tree in some other part of the orchard. The growth of next year will be determined partly by the environment of soil and atmosphere and mainly by the con- dition of the present tree to which that growth must be added. The legislative gardener may potter about that tree and prune and graft But as long as the tree lives it must grow. But it was not necessary for us to wait for Sir Henry Maine ^ to tell us that judgment preceded law in primitive societies to learn that this is the true order of succession in our common law, for the reports show us precisely how our law is made. Take a single illustration. In 1721 Reason and Trantor were put on trial for the murder of Lutterell. The prosecuting attorney called a clergyman who testified that Lutterell on his death-bed declared that as he was a dying man the defendants barbarously murdered him. A majority of the judges held that this evidence was admissible. The court gave no reasons, stated no rule, cited no precedents, but simply admitted the evidence. They were bound either to admit the evidence or to exclude it, and whether they ruled it out or in, they made a new precedent.^ Notice that in this case it appeared that Lutterell knew that he was dying. The court did not say that this circumstance was material and it was open to any future court to hold that it was material or immaterial. In 1789 that circumstance was held to be material in a case which called for a decision upon that precise point.^ Note also that the first case was the trial of men for the murder of the declarant. It was open to any future court to hold that this also was an immaterial circumstance, and to admit a dying declaration in civil cases, as coming within the " principle " of Rex V. Reason. But the later courts in fact held that this cir- 1 Maine, Ancient Law, page 3. 2 Rex V. Reason and Trantor, i Strange, 498 ; Thayer's Cases, 348. ' Woodcock's Case, Leach, 500 ; Thayer's Cases, 354.