JUDICIAL LEGISLATION. 1 89 through the earlier stages of the process. In the law of corpora- tions, for example, the courts are now engaged in examining the essential features of these important instruments of modern civil- ization, and in testing the various principles and analogies offered by the cases, and have yet to reach the situation where definite and comprehensive rules emerge from the chaos. The instances which have been considered serve to illustrate the method of reasoning by which a case is decided under our system, and the effect of the decision when made. That the process in- volves the development and expansion of the law at the hands of the judges is plain enough. It must needs be so because of two circumstances, — the effect which we give to precedent, and the in- finite variety of facts which present themselves. The law at any given time is limited to rules actually prescribed or enforced by the sovereign. 1 As new states of fact constantly come up for determination, and the decision once given becomes in turn a precedent for future reasoning, it is impossible that the law should not grow ; 2 and it is thus that the great body of our law has developed. It is highly important, however, to distinguish be- tween the result and the process by which it is reached, and thus to avoid the errors of those who, looking only at the former, conclude that the judge under a system of case law is a mere subordinate legislator of a peculiar kind. In one sense it is true that the judge makes law; but this is because of the effect which our system gives to his decision, an effect which is equally given (and the consequences of this are important) to his decision in apply- 1 So in Y. B. 33 Hen. 6, 7, 23, Prisot, C. J., replies to the argument that a certain matter is settled by use, and so is a " positive law: " " that is not so ; for there cannot be a positive law except such as is adjudged or made by statute, and here that is not the case." 2 This is clearly explained in Maine, Ancient Law (9th ed.), 31-3. Compare, also the remarks of Lord Esher (then Sir W. B. Brett) before the committee appointed by the House of Commons, in 1876, in regard to the liability of the employer for injuries to servants : " The judges have no right to make law, and in general they do not sup- pose they are making law. . . . What [they] may do and must do ... is to apply an admitted principle of law to the new combinations of fact which arise from day to day ; and it would be impossible that they could otherwise administer the law, for anybody who has been conversant with the law knows that new combinations of fact, which have never been brought before courts before, are brought before them almost from day to day." These observations were made with special reference to the rule that a master is not liable for injuries to a servant caused by the negligence of a fellow-servant Members of the committee had suggested that it was undesirable that rules of such im- portance should be introduced by judicial decision.
