Odger's English Common Law

62 THE SOURCES OF- THE LAW OF ENGLAND.
denotes the law which, prior to the Judicature Act, was
administered in the three superior Courts of law at West-
minster as distinct from that administered by the Court of
Chancery at Lincoln's Inn. At other times it is used in
contradistinction to the statute law, and then .denotes the
unwritten law, whether legal or equitable in its origin >
which does not derive its authority from any express declara-
tion of the will of the Legislature. This unwritten law has
the same force and effect as the statute law. It depends
for its authority upon the recognition given by our Law Courts
to principles, customs and rules of conduct previously exist-
ing among the people. This recognition was formerly
enshrined in the memory of legal practitioners and suitors
in the Courts ;
it is now recorded in the voluminous series of
our law reports, which embody the decisions of our judges
together with the reasons which they assigned for their
decisions.
At the present time, then, our law is practically derived
from two sources only— precedents and statutes. Text-books,,
though sometimes valuable aids in discovering what precedents
or statutes are material in any given question, are in them-
selves of no conclusive authority. Legal fictions have for
the most part happily disappeared. There is now but
little judge-made law. It is the duty of the judges to
declare the unwritten law, to interpret the written law, but
not to make new law. It is the province of the statesman,
not of the lawyer, to discuss, and of the Legislature to
determine, what is best for the public good, and to provide for
it by proper enactments. In many instances the law expressly
gives our judges a discretion in dealing with particular cases ;
but such discretion must be exercised judicially, and must be
regulated by legal principles. " Discretion, when applied
to a Court of justice, means sound discretion guided by law.
It must be governed by rule, not by humour ; it must not be
arbitrary, vague and fanciful, but legal and regular." 1
i Per Lord Mansfield, 0. J., in R. v. Wilkes (1770), 4 Burr, at pp. 2639, 2540 ;
and see the judgment of Lord Halsbury, L. C, in Sharp -\ Wakefield, [1891] A. 0.
at p. 179.