The sun., 1908-01-19


rals gcaeaat onpttrl lnpSaaa npan 49, bny6r
che risk of ioss ariainG from hny failure of
tho thing bought % conform 70 HE expoota-
tion. An improved sense u iAirne1s led
honest men TO disclose defects known to
them but not apparent to ordinary or casual
observation. Gradually this disclosure be-
came 90 far customary that purchasers
relied upon It, Thereafter the courts
recognized the custom and made oon-
pLiance with Il obligatory. Manufactured
articles are bought and sold by . certain
description. and II they conform to that
description the obligation Of the seller
ls complied with. Where, however, the
product OF a manufacturer h bought under
the same description there haa come 10 be
an expectation that the product will possess
certain qualities, and the custom has arisen
for manufacturers 20 take care that the
process OF manufacture shall secure such
qualities. This custom has been taken
cogniEanos Of by the courts and made
compulsory, 20 that the manufacturer may
now be compelled TO answer in damages
in case Of defects in the product caused
by the want Of customary care.
In similar ways the law OF contract has
been expanded 30 as to be made TO conform
to the reasonable expectations attendant
upon business transactions among most
honorable men. The jurisdiction which
courts Of equity exercise n marked
by a like development in the obligations OF
truth and honesty which are enforcsd.
Mr.. Carter points out that the duties
originally imposed upon actual and recog-
nized trustees are extended to cases In
which any trust or confldence has come
l.. 4 a. q a
in which one person had acquired power
over the property or pecuniary interests
OF another. which he may exercise TO his
own advantage and TO the detriment oS
such other, and legal hctions are indulged
in. implications and presumptions are
made in order to enforce under ordinary
legal forms rights and obligations which
spring out OF new and improved customs
In short, It is the function Of Judges
watchfully 70 observe the developing
moral thought Of the community and to
catch the indications of improvement in
customary conduct. and 20 enlarge and
refine ootraspondinsly the legal rule. In
this way step by step the great fabrics
OF common law and equity law have been
built up without the aid OF legislation.
and the Process il still RoinR on.
In a foot note Mr.. Carter cites an opposite
statement from the late j. A. Dixon, dis
tinRuished lawyer OF Glasgow, who at one
time was a believer in the advantages OF
codification Mr.. Dixon came In the end
TO see that the slow and gradual evolution
or spontaneous growth OF the law from
judicial decisions and the slow operation
Of custom in determining organic changes
in all the departments Of the Law exemplihes
the continuous process Of refinement going
on IN the common Law of q country in all
ages. "As institutions undergo a silent
modification; as morality progresses; a.
new needs and new modes OF satisfying
needs come TO the surface and as the coun-
tervailing facts Of new modes OF fraud.
oppression and crime also present them
selves, demand for suitable laws or modi-
fications applicable to the ever new cir
cumstanceS makes itself felt on every side
and is instinctively responded 10 by Judges,
at once the sharers and the regulators OF
public sentiment" The change In laws 30
brought about Is so exceedingly minute
from day to day that it will only be noticed
by comparing whole Glasses OF decisiens.
made at tolerably long intervals OF time,
on the same states Of fact, and when no
positive legislation has inte vened.
Mr. Dixon, might have mentioned a. a
striking illustration the change Of judicial
opinion concerning the alleged crime OF
witohoraft. in which one OF the greatest and
purest Judges that ever sat upon the English
bench believed. There is indeed no doubt
that. as Mr.. Dixon says. il you take up a
volume Of MOrisons Dictionary and look
through It from this point OF view you can
not fail to be impressed profoundly with tho
evidences Of the slow but incessaht process
Of organic change in law. You see whole
sections OF law silently transformed; you
see new regions arising and others disap-
pcaring; not by violent revoiLtions but blythe
astonishing operation Of some slowly work
ing causes, whose existence only gradually
becomes visible and whose effects are to be
measured only by generations or centuries
like the stupendOus geological changes,
the contiau ous formation and destruction Of
strata. the submersion OF ancient continents
and the upheaval of new ones-pot by cata-
clysms and earthquakes but az the out
come OF forces which are In active operation
around US day by day and which at given
moment produce 30 little disturbance that
their very existence is unperoeived till We
their vast results over epocha
d nd mona 0f time