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The Green Bag
“law" to such of them a; are "enforced" by one or more of three particular kinds of “sanction," namely, injury in person or estate to their transgressor inflicted
day when he may have to face popular clamor or resist political influence.
by the community through its agents,
function" when he yields to the “temp tation" to appropriate "a little of the legislative power," that such “appropria tion" is, in fact, a usurpation: is this
remedial action on its part, through the like agents, intended to place him and all other persons in the positions they would have respectively occupied had the violated rule been obeyed, and denial to him of the benefit of similar remedial intervention on its part in cases where he would have been entitled
to such intervention but for his trans gression. In other words, and speaking for lawyers, “law," as the term is used today and for our present purpose,
means the aggregate of those rules of conduct, disobedience to which by a
member of the community constitutes (1) a crime, (2) a ground for a civil suit
or (3) a reason to refuse the oflender some right of action or defense or other benefit which he would have otherwise enjoyed by virtue of such rules of con
duct. It is the function of our Courts to determine whether and to what extent one or the other of these sanctions shall be applied in any instance of alleged transgression of such a rule of conduct or, in other words, of the law.
Mr. W.
Irvine Cross, a well-known lawyer of my native city, in a short but trenchant magazine article on the “Doctrine of
Public Policy," says on this subject:—— It isasevere restraint often, upon the judicial temperament, to confine itself to passing upon the rights of individuals as governed by what
Baron Alderson called "fixed rules and settled precedents." The temptation is strong to round out one's usefulness by the appropriation of a little of the legislative power, to inject a high morality into the law, to help it along out of
one's own individual wisdom. . . . The judge who allows himself to be led away from his grand, though simple, function, by consideration of general morality, the public interest, or public opinion, is only weakening himself against the
Mr. Cross suggests that a judge is “led away from his grand though simple
true?
In his “Ancient Law," Sir Henry
Sumner Maine says on the same subject: — We in England are well accustomed to the ex tension, modification and improvement of law by
machinery which, in theory, is incapable of altering one jot or one line of existing juris prudence. The process by which this virtual legis lation is effected is not so much insensible as unacknowledged. With respect to that grmt portion of our legal system which is enshrined in cases and recorded in law reports we habitually employ a double language and, as it would appear, a double and inconsistent set of ideas. When a group of facts comes before an English Court for adjudication, the whole course of the discussion between the judges and the advocates assumes that no question is or can be raised which will call for the application of any prin ciples but old ones, or of any distinctions but such as have long since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge or acumen is not forthcom ing to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have, to use the very inaccu rate expression sometimes employed, become more elastic.
In fact, they have been changed.
A clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed, and that a new one has replaced it, eludes us. because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. . . . We do not admit that our
