the law, and in all civil actions between individuals in reference to property rights and injuries, some decision must be reached.

The reason and justice of the thing is frequently the sole guide of the court.

In a comparatively recent case the New York court of appeals was called upon to determine the right of the owner of logs which had been cast by a flood upon the land of a lower proprietor of the soil, bordering upon the stream. In seeking for the reason and justice of the matter, resort was had to other systems of law; and in this case the source resorted to was the civil law, and the rule of the civil law was expressly adopted by quoting, as their controlling reason and rule, the language of the civil law, as expressed by Domat (16).

We have before referred to a similar instance in reference to the law of bailments. In this case, not simply a single rule or a single principle was adopted, but one may truly say that the whole English law of bailments was framed and formulated by the adoption of the Roman law by the judge deciding the case (17).

§ 174. Judge-made law. Very frequently the expression "judge-made law" is used in condemnation of all utterances from the bench recognizing and applying rules of law which have never before been announced in the jurisdiction within which the court is sitting.

Sufficient has been said in reference to the common law and the law merchant to indicate that there is a field of

16 Sheldon v. Sherman, 42 N. Y. 484; 1 Am. Rep. 569.

17 Lord Holt in Coggs v. Bernard, Ld. Raym., 909; 1 Sm. L. C. 369.

judicial reasoning and a function of the judiciary to give sanction in specific cases to the rules of reason and uni. versal customs which obtain among men.

In that sense, and within the limits indicated, judgemade law is not only justifiable, but is the imperative duty of the court.

An eminent member of the New York bar very truly says: "Especially is this so under our Anglo-American system of common law. The law is what the court of last resort declares it to be. What the court declares the law to be is frequently determined by the reasoning of counsel. This is particularly the case where a novel question is presented-what we call a case of 'first impression.' He says: "Of course the legislature does exercise its lawmaking powers from time to time, but generally in a way to make us thankful that it does not exercise these powers more frequently” (18).

Most of the judicial utterances in the domain of the common law, embracing the law merchant, maritime and admiralty law and equity, would fall within the condemnation of judge-made law were there no distinction made between what is properly termed judge-made law and the application of the rules of reason and justice to cases which must continually be submitted to the courts for their decision.

§ 175. Improper judicial legislation. When by this process of judicial reasoning rules of conduct have been once thoroughly established in the jurisprudence of a

18 Address of Hon. Wm. L. Hornblower. See also Loeb v. Trustees, Fed. 43.

state or a nation, the function of the judiciary is performed, and these rules become a part of the law of the land. Other cases, arising after such rules are so established, are not new cases or cases of novel impression. Especially is this the case where the question involved is a question of property rights or a question of general importance, like a question of commercial law, rules of damages, liabilities of master and servant, liabilities of carriers, and the like (19).

The true rule has frequently been announced. Thus, Judge Cooley says: "When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, unless for very urgent reasons and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law" (20). "A precedent flatly unreasonable and unjust may be followed if it has been for a long period acquiesced in, or if it has become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by overruling it. In such a case it will be proper to leave the correction of the error to the legislature, which can so shape its action as to make it prospective only, and thus prevent the

19 It will be observed that the federal judges speak of rules of "general law" where one would ordinarily say common law.

201 Cooley's Blk. 69, note 4, citing 1 Kent, 475. See Nelson v. Allen, 1 Yerg. 376; Emerson v. Atwater, 7 Mich. 12; Sparrow v. Kingman, 1 N. Y. 260; Palmer v. Lawrence 5 N. Y. 389; Boon v. Bowers, 30 Miss. 246.

injurious consequences that must follow from judicially declaring the previous decision unfounded" (21).

Illustration: Priestly v. Fowler (22). In 1837 the English court deduced the rule, based upon public policy, that where fellow-servants were habitually working together, there should be no recovery for an injury by one servant to the other, when the proximate cause of the injury was the negligence of the fellow-servant. In this manner originated the fellow-servant doctrine, with its many refinements and exceptions.

When the court was called upon to hear and determine this case they had no precedent to guide them, and in that case they very properly formulated the rule which seemed most reasonable and just.

The rule of comparative negligence was adopted for the first time in Illinois many years ago (23), and the rule was very frequently applied during a long series of years (24), and became the settled rule of law.

Notwithstanding it is within the province of the courts of Illinois to recommend legislation to the general assembly, and indicate wherein the law might be improved by change, the court of Illinois finally announced its intention to change this long established rule (25).

21 Emerson v. Atwater, 7 Mich. 12; Pratt v. Brown, 3 Wis. 603; Day v. Munson, 14 Ohio St. 488; Taylor v. French, 19 Vt. 49; Bellows v. Parsons, 13 N. H. 256; Hannel v. Smith, 15 Ohio, 134; Sparrow v. Kingman, 1 N. Y. 200; Ram on Legal Judgment, ch. 14; 7 Robinson's Practice 1 et seq.

22 3 Mees. & W. 1.

23 G. & C. U. Ry. Co. v. Jacobs, 20 II, 478.

24 C., B. & Q. Ry. Co. v. Hazzard, 26 Ill. 373; C. & A. R. R. v. Gretzner, 46 Ill. 75; C., B. & Q. Ry. Co. v. Johnson, 103 Ill. 512; W. S. Elev. Ry. Co. v. Stickney, 150 I11. 362.

25 City of Lanark v. Dougherty, 153 Ill. 163.

The rule involved in these Illinois cases is not a rule of property, but it was long established and there were no changed conditions-it was simply judicial legislation.

The attainment of uniformity is a sufficient basis of policy to justify a change in a rule long established in a given state but not in harmony with the prevailing rule (26).

§ 176. The rule Stare Decisis. Stare Decisis in plain terms means that where the courts have recognized a rule and have followed it, other judges will in similar cases and under like conditions apply the same rule.

This is a technical name for a much abused but very necessary and salutary rule. If there is to be a body of law recognized by the courts and given expression, either in the reports of the decisions or the writings of jurists, which in this respect must necessarily be based partly upon the law as expressed in the decisions of the courts, it is necessary, in order that the rules shall be given the character of a fixed law, that the rules announced by the highest judicial tribunals in the land shall have stability and be respected unless some good reason is shown for making a change. A little reflection makes it plain that the principle of "Due Process of Law" traces to the same origin, for this in its simplest form of expression is that the treatment of each man's case shall conform to a general rule, not only as to its substantive law, but as to its

26 e. g. The equity doctrine of tracing trust funds. Nonotuck Silk Co. v. Flanders, 85 Wis. 237; Crandall v. Woodhouse, 197 Ill. 104, 58 L. R. A. 385. Constitutional construction of a statute to conform to the construction by the federal court, Peo. v. O'Brain, 176 N. Y. 263. See also Commercial Bank v. Davis, 115 N. C. 226.