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VOL. V.

No. 6

GENTLEMEN :

The subject of appellate courts is one of paramount interest to the legal profession and to the community at large. Our common-law system of jurisprudence is a system of judge-made law as distinguished from the civil-law system or the codified system of legislative law. Our appellate courts lay down and formulate the rules and principles which make up the great body of the law of the land as administered by the courts of first instance. The legislature steps in now and then and enacts laws on special subjects; but in the absence of codification the vast majority of the legal questions arising among us are determined. by the so-called unwritten law as announced by the judges in their decisions. In England and in most of the States of this Union, the rights and liabilities of master and servant, of partners, of trustee and cestui que trust, the construction and effect of contracts, express or implied, the liability for torts to person or property, are in

the main governed not by rules enacted by the legislature, but by rules enacted by the courts.

Bentham calls this system "judge-made law"; Austin calls it "judiciary law."

The theory of Blackstone that the judges simply declare what has always been the law, is a mere fiction, and is repudiated by all modern writers on jurisprudence. Nothing is gained by preserving this fiction and blinding our eyes to the exact facts.

Blackstone bases the common law upon established customs, rules, and maxims, the authority for which "rests entirely upon general reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it. But here a very natural and very material question arises: how are these customs and maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are

the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.

. And indeed these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law."'

And again he says that if a "former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.""

All of which is very pretty theory, but wholly at variance with the facts. The questions which daily arise before our appellate courts presenting novel points for determination are not decided according to previously existing rules or customs, but in analogy to previously existing rules and customs. The new rules laid down are nothing more nor less than judicial legislation.

Originally, in England, the court of last resort was virtually the same body as the legislative body, viz., the Aula Regis, or the Parliament. After the Lords and the Commons sat separately, the House of Lords became the Aula Regis, or court of last resort. In practice, to-day, the House of Lords, when sitting judicially, is composed only of the Lord Chancellor and the law lords or judges of appeal.

The former system in this State where the Senate was the court of last resort, was based upon the English theory. The complete separation now existing between. the legislative and the judicial departments of our State and Federal governments seems to be a radical departure from the old

theory of the English and Roman laws; but our legislature still retains a right of veto over rules of law laid down by the courts and the right to enact new rules. Popular election of judges has a theoretical justification, though open to practical objections.

The battle has waged hotly and fiercely, and still wages hotly and fiercely, between the champions of this system of jurisprudence and the champions of the system of codified or statutory law. I do not propose at this time to enter on this discussion. I am not one of those who believe the arguments on this subject to be all on one side. I am not oblivious to the a priori force of the objections urged by Austin, Bentham, and others to the system of judge-made law. of judge-made law. It has its faults, and very grave faults. On the other hand, I believe the dangers to be apprehended from a codification of the whole body of our substantive law (as distinguished from remedial law, the law of practice and criminal law) are so great and formidable as to far outweigh any a priori objections to judge-made law. I believe, and experience shows, that statutory law is more technical, more uncertain, more changeable, and less symmetrical, just, or logical than judge-made law. This subject is an interesting and enticing one, but I mention it here only as leading up to and enforcing the importance of the topic before us.

As long as we have judge-made law and a government by precedents, the character of our appellate courts is of the utmost moment. Indeed, even under a complete system of codified law, the construction and application of the statutory rules would still depend upon the decisions of the courts, since human language is never free from doubt and statutory construction is a source of unending litigation.