THE EVOLUTION OF LAW.* 



In the modern State there are two kinds of law ; one 

 made by the legislature ; the other by the judges. Law 

 made by the legislature is called statute law ; that made 

 by the judges is called the law of judicial decision. If 

 a man agrees to serve another for a term of two years, he 

 is not bound unless his agreement is in writing ; because 

 there is a statute to that effect. But if he agrees for 

 a term of less than a year and for a consideration, it is a, 

 valid contract : not because of any act of legislature, but 

 because, long ago, in England, in the time of Stephen, the 

 spiritual courts held that a man was bound in conscience 

 by his engagement ; afterwards, the temporal courts held 

 that he was bound in law, and have so continued to do to 

 this day. 



Statute law includes political, public and private law, 

 the law of procedure, corporations and municipalities, etc., 

 and a part of what is called Private law, which has to do 

 with the rights and obligations of individuals in the or- 

 dinary affairs and business of life. 



The larger part of the rules of Private law is made by 

 the judges. That judges make law is not explicitly stated 

 in the text-books. In fact it is not generally admitted 

 that they have any part in law-making ; the theory being 

 that there is somewhere a store of ready-made law, con- 

 sisting of rules and precedents, where the judges somehow 

 find what they want after the lawyers have searched for it 

 in vain, and then expound and apply it with plenty of 

 comment and obiter dicta, but no addition. 



Now, it often happens that, if any determination of 

 right or liability is made, it must be made by the Court. 

 Consider the first case of action brought against a parlor- 

 car company for loss of a satchel containing jcAvelry en- 

 trusted to the porter without notice of contents. Here 

 the Court gives judgment in a case which differs from any 

 to be found in the reports ; and just in proportion to 



*Coi'vuiGHT, 181)0, by James H. West. 



