of sale where the intention of the parties is that the property shall pass before delivery; but that as regards gifts by parol, the old law was in force when Irons v. Smallpiece was decided;" and he concludes that that case has not been overruled.
Among the citations collected by Professor Gray there are several which appear to have escaped the attention of the court. Lord Hardwicke's comment in Ward v. Turner (2 Ves. Sen. 431, 442) on the passage cited by Fry L. J. from Jenkins's Centuries, 109, Case 9, is interesting; and the observation of Baron Parke in Oulds v. Harrison (10 Ex. 572, 575) seems to throw light on the question discussed by the Lord Justice, of that eminent judge's attitude towards Irons v. Smallpiece.
The concurring opinion of the Master of the Rolls is noticeable. He draws a distinction—not wholly easy to understand—between "fundamental propositions of law" and the "amount or nature of the evidence which will satisfy a court of the existence of such a proposition." The former, he says, nothing but an Act of Parliament can alter, while the latter may be changed by judicial decision; and since he concludes that delivery is not a piece of evidence to prove a gift, but "one of the facts which constitutes the proposition that a gift has been made," he feels constrained to hold that delivery must remain a necessary part of an oral gift until the law is altered by Parliament.
The method pursued by the Master of the Rolls in Cochrane v. Moore and the theory which his opinion indicates of the nature of law call to mind the noteworthy address of Mr. James C. Carter on the "Origin and Growth of Law," delivered at Saratoga on August 21st, before the American Bar Association. Mr. Carter takes issue with Austin's definition of law as a command issued by a superior to an inferior. According to his own view, the lines of which were indicated to some extent in his earlier address on "The Provinces of the Written and the Unwritten Law,"[1] law is "not a command nor a body of commands, but consists of rules springing from the social standard of justice, and which have been framed in the course of the application of that standard through a long period to the transactions of men,"—"the expression of the universal habits and customs of the people in their jural relations." The judge is an expert appointed to "search" for and declare the law, and to "affix to it his official mark by which it becomes more certainly known and authenticated." The office of the legislator comes after that of the judge in the order of social development, and his work is properly supplementary,—to assist society in forming new customs and in getting rid of old ones which it has outgrown. The true function of legislation closely resembles that of the judiciary in "affixing the public mark and authentication upon customs and rules already existing, or struggling into existence, in the habits of the people."
The address is undoubtedly one of great value and importance; in some respects, however, it seems open to question. The reasoning, for example, by which Mr. Carter seeks to prove that a statute which is not enforced loses its character of law, is not wholly convincing. It maybe admitted that a statute which is "not in accord with the habits,
- ↑ See 3 Harv. L. Rev. 279.
