Judges as Law Makers tribunals legislate; we imply that they have never legislated, and yet we maintain that the rules of the English Common Law, with some as sistance from the Court of Chancery and from Parliament, are co-extensive with the compli cated interests of modern society. . . . The fact is . . . that the law has been wholly changed; the fiction is that it remains what it always was.
That is to say, in fact English and American judges "appropriate" and have always “appropriated," not "a little,"
but a great deal “of the legislative power," although this "appropriation" has been and is concealed from super ficial observers and those wilfully blind
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the subtle perversity of the conclusions it could build on ancient texts, without discoverable departure from their literal tenor.
Some less harmful, but yet clearly
mischievous results of similar mental processes may indeed be found in vari ous obsolete and obstructive rules of procedure or proof in our criminal law which, in practice, serve only to provide loopholes of escape for conscious and often brazen guilt.
For example, no one would have a man once fairly and properly tried for a crime and either convicted or acquitted brought to trial again for the same
by one of the most noteworthy among
those “legal fictions" which have played so important a part in the development of both Roman and English jurispru dence. What would have been the re sult had the fiction in this case been a fact?
In other words, if our judges,
from the beginnings of the Common Law, had been guided only by Baron Alderson's "fixed rules and settled prece
offense: interest rei publicae ut sit finis litium, and no more fitting occasion could arise for the application of this wise and salutary maxim. But if the
trial has been unfair or otherwise im proper, whether through misconduct of the jury or error of the judge, it is the dictate of common sense that this mis carriage should be duly corrected and the man retried. This can be and is
dents," what would have been the con
daily done when he has been convicted; sequence to the world and especially to us? This is shown by the experience of those countries where these "rules" have been immutably "fixed" bya supposed sacred origin and a religious sanction; and, on this point also, we can call Sir
Henry Maine as a witness. He tells us,
but if he has been acquitted, no matter how erroneously and with what evident injustice, there is no remedy, because
of an old and arbitrary rule against what is called "double jeopardy," a rule originating under circumstances utterly unlike those of today and which has been
in the work already quoted: — This rigidity of primitive law, arising chiefly from its early association and identification with religion, has chained down the mass of the
human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. There were one or two races exempted by a marvelous fate from this calamity, and
grafts from these stocks have fertilized a few modern societies; but it is still true that, over the larger part of the world, the perfection of law has always been considered as consisting in adherence to the ground plan supposed to have been marked out by the original legislator. If
generally embodied in our constitutions and statutes to the great profit of law breakers. Again the Common Law of England, unlike most other systems of mediaeval law, never sanctioned torture, whether
of defendants or witnesses. In this the Common Law showed itself both wise and humane for human experience has shown that the use of torture tends, not to secure
but to hinder the discovery of the truth; but, by reason of the strong and reason
intellect has in such cases been exercised on
able repugnance thus fostered towards
jurisprudence, it has uniformly prided itself on
confessions and testimony extorted by
