133
cular equities of the case be continued, public shifting sands of the sea. And herein is the very warp and woof of the question at issue. distrust may follow, and the electors may Aside from various modes of reasoning, refuse to continue for long terms the other whereby different interpretations are arrived wise faithful judges. Rather let us look at the converse of the proposition and if the at even under similar conditions, there has ever been and always must be an evolution in public come to believe that the courts are the law, a progress in jurisprudence, as there bound by precedent rather than by justice, by rule rather than by what is just and right, is in forms of government, human thought, that decisions are made which shock the con modes of life, manners and customs, and in science and are contrary to that which men the arts and sciences through new discover believe to be natural justice, we may see the ies and inventions. That which may. have been a well settled and accepted principle of time when the elective franchise will compil a statute that the jury shall be the judges of law at one stage of human progress would the law in all cases, whether civil or criminal, not be tolerated for one moment in these and where then, we may well ask, will there modern days; the earlier legal treatises are be any certainty either of law or justice? full of such principles, they are not merely obsolete, they are positively denied by ad It is true that there are cases to be found in vancer! thought and by the results of experi the reports where the courts of last resort ence. The law cannot stand still any more have departed from established precedent in than can mankind cease to progress; as one order that justice might be done under the particular circumstances of the case, and I goes forward so must the other, and as hu am glad to be of those who maintain that man conditions improve and develop, so, of necessity, must jurisprudence advance. . . . such a course is conducive to the proper ad The foremost and chief principle of all law, ministration of jurisprudence. and one which cannot be changed, is that justice is to be done, that that which is right IT seems, says Law 'otcs, that an innocent and just shall alone be decreed. A law that convict may obtain relief from the courts in is not just, or which in its application works one of two ways only, that is, either by a an injustice, will not and cannot survive. . . . motion for a new trial or by a writ of error If we are to have rules of law hard and coram z'obis, and that his choice of remedy fast, and are to bind them so tightly around nm st be governed by the provisions of local our judges as to compel them to be followed statutes governing these two proceedings in by the strictest construction, without con respect to the time within which they may science and without heart, then will our be resorted to. If neither is available be courts become mere machines of learning to cause of a time limitation, then relief can be force the facts of every cause within those obtained only in the form of executive clem "procrustean" rules, irrespective of the de ency. An innocent man naturally wants jus struction of natural right, and regardless of tice and not clemency, and it would be well that justice which will then meaninglessly de for legislatures to see to it that no innocent fine their official titles, but which by law and victim of circumstances should ever be sub by conscience they have been sworn to up hold; all, forsooth, that we may have the jected to the shocking injustice of being forced to ask to be pardoned for a crime "knowne certaintie of the law," and that the advocates having applied its measuring stick which be did not commit, and to leave stand to their clients' causes may be assured that ing a judicial record declaring him a felon. it may likewise be the means of adjudication by the Bench, irrespective of the wrongs THE Canada Law Journal concludes an arti done to others. . . . cle on "The Alaskan Boundary Award" in It has been suggested that if the tendency these words: of the courts to adjudge causes by the parti We recognize, of course, that the parties
