laws, its nature may be inferred from the definition of statutory law; for a statute formulates whatever is resolved, ordained or enacted by the forms of legislation in the exercise

of that power.

42

88 (7). Statutory law in general.- A statute is, in a general sense, the written will of the legislature rendered. authentic by certain prescribed forms and solemnities," prescribing rules of action or civil conduct. This is comprehensive as applied to persons. "Statute law may, we think," says Wilberforce, "be properly defined as the will of the nation expressed by the legislature, expounded by the courts of justice. The legislature, as the representative of the nation, expresses the national will by means of statutes. These statutes are expounded by the courts so as to form the body of the statute law." 43 Mr. Austin says: "A law in the literal and proper sense of the word may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him." He also says: "Legislative powers are powers of establishing laws and issuing other commands." 45

In what capacity does a legislature act in issuing other commands? In other words, in what other way, or to what other end, may "legislative powers" act or issue commands than to establish laws? It would seem to be a truism that the product of law-making is law. The foregoing definitions confine law to persons. If it is so confined, then the legislature in the exercise of the law-making or legislative power may not legislate in regard to things. Nor should those doctrines and principles which have been accepted as part of the common law, relating to things, be regarded as law. The truth is that law is a rule, not necessarily a rule of conduct, though a rule of conduct is a law a branch,

parties before them are bound or
free to do or suffer. In fine, the
lezislature gives, and the court ap-
plies, the law." 2 Wash. Ty. 3.
41 1 Kent's Com. 447.

421 Black. Com. 44.
43 Wilb. St. L. 8.

44 Austin's Jurisprudence, vol. 1, p. 3, § 2.

45 Id., § 230.

not the whole of it. As a rule a statute may, besides prescribing a rule of civil conduct to sentient subjects, create or establish legal qualities and relations, operating as a fiat. Statutes may be institutive, creating and organizing legal entities and endowing them with qualities and powersfor example, public and private corporations. They create offices, courts, and other governmental agencies; they de fine crimes and torts; property, corporeal and incorporeal; titles, contracts; prescribe remedies and punishments; they impart a legal vitality to and regulate all the minutia of civil polity, including every social and business relation or institution deemed conducive to the well-being and happiness of the governed.45

§ 9 (8). As a rule for persons, it is not a transient, sudden order from a superior to or concerning a particular person, but something permanent, uniform and universal." It is a rule, because not merely advisory, but imperative; it emanates from the supreme power as a command, and does not depend for effect on the approval or consent of its subjects; it is a rule of civil conduct, because it does not extend into the subjective domain of morals or religion; it is prescribed, and therefore operates prospectively, though it may under certain circumstances and limitations operate retrospectively, as will be seen hereafter. It is permanent, uniform and universal, not in the sense of being irrepealable or necessarily operating upon all the persons and things within the jurisdiction of the legislature, but because a law in general has a continuing effect and operates impartially throughout the state or some district of it, or upon the whole or a class of the public.49

46 License Cases, 5 How. 504, 583, 12 L. Ed. 256; Munn v. Illinois, 94 U. S. 113, 125, 24 L. Ed. 77. 47 1 Black. Com. 44. 48 See post, ch. XVII.

49 In Slack v. Maysville, etc. R. R. Co., 13 B. Mon. 22, Marshall, J., speaking for the court, said: "It

48

would be difficult, perhaps impos sible, to define the extent of the legislative power of the state, un less by saying that so far as it is not restricted by the higher law of the state and federal constitutions. it can do everything which can be effected by means of a law. It is

§ 10 (9). Rules of action.- Courts judicially formulate rules of action, but only by applying to a particular party an existing law. The court ascertains by trial that the party is within a rule which is law, and the facts necessary to its special operation upon him. What that law enjoins in general the court adjudicates and administers in the particular case. Thus, in a statute before me is this provision: "Every person guilty of fighting any duel, although no death or wound ensues, is punishable by imprisonment in the penitentiary not exceeding one year." This is a statute a law. Mr. A. is accused of the offense and brought before a court of competent jurisdiction, by proper form of accu

the great supervising, controlling, creative and active power in the state, subject to the fundamental restrictions just referred to. What ever legislative power the whole commonwealth has, is by the constitution vested in the legislative department, which, representing the popular majorities in the several local divisions of the state, and under no other restraint but such as is imposed by the fundamental law, by its own wisdom and its own responsibilities, may regulate the conduct and command the resources of all, for the safety, convenience and happiness of all, to be promoted in such manner as its own discretion may determine. The legislative department performs and finishes its office by the mere enactment of a law."

The nature and scope of legislative power in the enactment of laws as treated in an article on "The Constitutionality of Local Option Laws" " in 12 Am. L. Reg. (N. S.) 129, are too narrow. Con trary to the assumptions there made, it is believed that all valid

acts of the legislature, whether national or state, are laws. The enumerated powers granted to congress are legislative in their nature; no other would vest in a state legislature under a general grant of legislative power. Other clauses in the constitutions, requiring or regulating the action of the legis lature in reference to specific subjects in the internal system or policy of the state, are not intended to confer or regulate any other than the power of making lawssaving the special jurisdiction in cases of impeachment, and such as relate to the autonomy of the sep arate branches or are incidental to the exercise of its legislative function. Hope v. Deaderick, 8 Humph. 1, 47 Am. Dec. 597; Lusher v. Scites, 4 W. Va. 11; Myers v. Manhattan Bank, 20 Ohio, 295; Anderson v. Dunn, 6 Wheat. 204-235, 5 L. Ed. 242; Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377; Von Holst, Const. L., § 28. The taxing power is legislative. Marr v. Enloe, 1 Yerg. 452; Lipscomb v. Dean, 1 Lea, 546.

sation and by proper arrest, and not pleading guilty a trial takes place. The court ascertains by the verdict of a jury that A. is guilty of the acts denounced in the statute. The sentence based on that verdict is that "you, Mr. A., be imprisoned in the penitentiary one year." The statute was general that every person so guilty should be so imprisoned. That was making a law-prescribing a rule of conduct. The court having judicially ascertained that A. had done these acts applied the law to him-repeats the statutory rule of action on A. Enacting the rule is legislative; trying A. and applying the rule to him, repeating and formulating it for accomplishing the imprisonment provided for in the rule, is judicial.

§ 11 (10). Legislative rules of action - Essential limitations. Even rules of action are not valid laws, if, when enacted by the legislature, they are judicial in their nature or trench on the jurisdiction and functions of the judiciary. The legislature may prescribe rules of decision which will govern future cases; these rules will have the force of law; so general rules of practice, regulating remedies and so operating as not to take away or impair existing rights, may be made applicable to pending as well as subsequent actions.50 But it has no power to administer judicial relief, – it cannot decide cases, nor direct how existing cases or controversies shall be decided by the courts; it cannot interfere by subsequent acts with final judgments of the courts. It

50 Riggs v. Martin, 5 Ark. 506, 41 Am. Dec. 103; Smith v. Judge, 17 Cal. 558; United States v. Samperyac, 1 Hempst. 118; Cutts v. Hardee, 38 Ga. 350; Rathbone v. Bradford, 1 Ala. 312; Coosa R. S. B. v. Barclay, 30 id. 120; Hope v. Johnson, 2 Yerg. 123; Lockett v. Usry, 28 Ga. 345; Ralston v. Lothain, 18 Ind. 303; Evans v. Montgomery, 4 Watts & S. 218; Oriental Bank v. Freeze, 18 Me. 109, 86 Am. Dec. 701; Read v. Frankfort Bank, 23 id. 318;

Woods v. Buie, 5 How. (Miss.) 285; United States Bank v. Longworth, 1 McLean, 35, Fed. Cases, No. 923; Taggart v. McGinn, 14 Pa. St. 155; Van Norman v. Judge, 45 Mich. 204, 7 N. W. 796.

51 "A legislative act is said to be one which predetermines what the law shall be for the regulation of future cases falling under its provisions, while a judicial act is a determination of what the law is in relation to some existing thing

cannot set aside, annul or modify such judgments,52 nor grant or order new trials, nor direct what judgment shall be entered or relief given. No declaratory act, that is, one professing to enact what the law now is or was at any past time, can affect any existing rights or controversies.55