Page:The Green Bag (1889–1914), Volume 19.pdf/619

THE GREEN BAG Carter before this Association, that the than the statutes made and provided so people make the common law, because plentifully. The reason for this is plain. "we find it to spring from and rest upon The common law is expanded slowly and the habits, customs and thoughts of a carefully by judicial decisions based on a people, and from these a standard of jus standard of justice derived from the habits, tice is derived by which doubtful cases are customs and thoughts of a people. And determined. The office of the judge is lest the judge at nisi prius may make a not to make it, but to find it, and, when mistake, appeal is allowed to a court com it is found, to affix to it his official mark posed of a number of experienced and by which it becomes more certainly known learned judges. These again have the and authenticated." While this is so, assistance of the printed or oral arguments yet the announcement of the law comes of counsel, or both. And they, free from from the Bench. And for the most part prejudice and partisan bias, and animated it comes only after the court has had the by that love of justice which grows stronger benefit of the learning of counsel, which and more all-pervading with its daily min to be comprehensive and useful must em istration, seek with diligence and earnestness brace knowledge of the people and their the true rule. So far as it is given us to customs, as well as knowledge of principles realize an ideal method of building the law established by prior decisions. In this of a people, we possess it. way our unwritten law. better known as The proper function of the legislator is the common law, has been so developed suppletory to that of the judge. He should as to meet the exigencies of our wonderful strive to ascertain the growing but imperfect growth and expansion, and of our compli customs which spring from the effort of a cated business and social conditions. people to correct errors, and give to them Judges who are inspired by the highest the dignity and force of law. This he patriotism and who love justice seem to often attempts to do, and frequently suc play the leading part in this procedure, ceeds. But the task of even the wise because upon the Bench is charged the legislator is beset with difficulties. So duty of announcing the law and rendering many bills press upon his attention that judgment. It may well be doubted, how if he had the wisdom of Solomon he could ever, whether the public spirit, learning not master them in one short session. and ability of counsel contributes less than Many such bills are introduced by men that of the court toward the just settle who do not understand them, merely that ment of a majority of disputes. Be that they may gain the applause of the thought as it may, there is no reason to doubt that less or the envious. Others are strike our profession has contributed in a large bills pressed in the hope of unlawful gain. degree toward that liberal measure of Still others are presented from honest mo justice which we as a people enjoy to-day. tives, but with no appreciation that their I do not mean that the ideal has yet been enactment will work injury, while still reached. Far from it. But we can say, more represent the effort of untrained that many long steps toward it have been legislators to enact into law what they taken, since that period in England's his mistakenly conceive to be the will of the tory when controversies were decided by people. More mischievous still, as a rule, are "wager of battel." Moreover, we can claim, and that, too, the bills pressed for passage in the interests without fear of contradiction, that our of a political organization. Experience people's habits and customs bring the teaches that comparatively few of the common law much nearer to the ideal many bills of a legislative session are care