JUDICIAL LEGISLATION. 1 99 are fixed with absolute rigidity. So far as it becomes desirable to change them, they are changed from time to time by persons in authority. In a whole season of professional base-ball there are few cases in which the least doubt arises as to these rules, and such cases are decided by the umpire merely because he is the most convenient person to appeal to. So far as these rare dis- putes go the umpire might be dispensed with altogether. The players could easily reserve the point for the higher board which in any event ultimately decides it, and continue the game. The real duty of the umpire is to decide pure questions of fact, — whether A or B first reached a certain point, whether the ball was caught or dropped, etc. He is a jury, not a judge. If he were a judge, and if the illustration were apt, it would be fatal to Mr. Carter's argument, for base-ball, football, and prize-fighting are instances of perfect and successful codification. The conditions of the game make a code possible, and indeed necessary. IV. From the considerations into which we have gone certain conclusions may be drawn in regard to the question of this essay. 1. Judicial legislation is a necessary element in the develop- ment of the common law. This is a consequence, in the first place, of our judicial machinery and our mode of treating previous decisions ; and secondly, and especially, of the shape in which facts present themselves. In the reasoning process by which the various combinations of facts are analyzed and the law applied to them, there is necessarily growth and development, and this occurs also to some extent in statute law. 2. The extent to which this judicial legislation should properly go is a question on which precise rules cannot be laid down. An attempt to formulate such a rule has, to be sure, been recently made by high authority. In Cochrane v. Moore, 25 Q. B. D. 57, Lord Esher, in holding that the parol gift of a chattel inter vivos required delivery, drew a distinction between " fundamental prop- ositions of law," which could be changed only by Parliament, and the "evidence of the existence of such a proposition," which was within the disposition of the court. But no test was sug- gested by the Master of the Rolls for making this discrimination, and his application of it to the case before him is the best criticism upon it. It is impossible to see in what sense delivery is " part of the proposition of law which constitutes a gift," yet merely evi- dence of a similar proposition in the case of a sale. In truth no
