SOME MODERN TENDENCIES history. It is, and always has been, common ground that the judge's duties are purely judicial, and that the very foundations of society would be in danger if the Bench ventured to encroach upon the functions of the Legislative Branch. And yet the common law grows. How? By the changes in the law which case after case makes — changes which we are half reluctant to admit but which are none the less real. Very rarely is the fact as frankly stated as it was' recently by one of our Canadian Judges. He handed down a judgment upon section 23 of a certain statute, and upon appeal his judgment was reversed. Another case of the same kind came before him and he had to follow authority. In his written judgment, however, he said: —-"I base this upon section 23 as amended by the Court of Appeals." And the common law grows not merely by following and enlarging the scope of previous decisions, but by boldly overruling them at times. Well do I remem ber rising to argue one of my first cases. I had the confidence — that sublime confi dence that one feels when he is able to cite a case exactly in point. The supreme moment at last arrived, and with much ostentation the case was cited. To my horror the judge received it very coldly, merely observing, "That case has been overruled." "No, my Lord," I continued, "I have gone very carefully through the reports and it has never been overrruled." "Well," said the judge, "if it hasn't been, it •will be, for I'll overrule it." Now for my last hope. " But, my Lord, it happens to be one of your Lordship's own judements. "Ah!" said he, "I am glad of that. I'll have the less hesitation in overruling it;" which he promptly did. And so the common law grows by interpretation, by extension of principles, by overrruling, and by the much more refined art of distinguish ing. And while in theory the pretence is that the judges do not make law, the principal argument we hear against codifica tion is that the law thereby becomes crystal
171
lized and loses its elasticity and its adapta bility to the growing needs of a progressing community. If I venture to refer this afternoon to a few modern tendencies, or what I believe to be tendencies, you will understand that it is rather in a spirit of enquiry than of criticism. Some of them you may never have felt at all in this enlightened state. The great body of jurisprudence of which I was speaking has grown until it has become an unwieldy mass, and I have asked myself whether the too copious citation of cases is not a growing weakness of modern advo cacy. In briefs and in oral arguments the multitudes of cases referred to is becoming appalling. It is a poor proposition indeed that you cannot support by some cases. That there should be conflicting authority is inevitable, considering the number of tribunals whose decisions are quoted. We are happy, indeed, when we have authority clearly in point, and I must not be under stood as objecting to the proper use of authorities. Perhaps at your bar you have not had occasion to complain of it, but the multiplication of citations, in many of which the analogy to the case in hand is very faint, if not quite illusory, imposes unnecessary labor on the Bench and tends to obfuscate rather than to elucidate. I am a believer in codification, but if this be not obtainable, 'forgive me if I indulge my civil law prejudices and say a word in favor of the deeper study of abstract principles. A young barrister visited the Supreme Court of the United State's, and he told me he left it with some things to think over. Counsel for appellant cited and discussed a score or more of cases. Mr. Evarts, for respondent, spoke but half-an-hour and did not quote a single case, prefixing his argument by the statement that the case was one that could be dealt with upon principle. It is of course true, as we often hear, that law is not* an exact science. Indeed, I read in a recent paper by a learned judge that it had been laid down that if
