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If we examine the systems of government which exist in Europe and contrast their legislative departments with those we have established, we shall find marked differences distinguishing them. Sir Edward Coke said of the power and jurisdiction of Parliament that "it is so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds. It hath sovereign and uncontrolled authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms."

In France, too, the legislative department is supreme. The Chamber of Deputies and the Senate seem to be invested with sovereign power, and can alter at their will the constitution itself.

The American people, it is unnecessary to say, have never conferred on the legislative department in any State, or in the Nation, any such unlimited power as is possessed by the law-making power in the countries I have named. On the other hand, the people in this country have conferred on the legislative department in each State, as well as in the Nation, a more absolute power than is conferred upon the same department in the Swiss Confederation.

It is a settled maxim of constitutional law in the United States, that the law-making power conferred upon the legislative department cannot be delegated to any other body or authority. "The prevailing doctrine in the courts appears to be, that except in those cases where by the constitution the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration.” * But in Switzerland the legislative department of the government is obliged to submit the laws which it passes to a vote of the people, provided a sufficient number of citizens petition that they be submitted to that ordeal. In some of the States of Switzerland, no law which has passed the legislature can go into operation until it has been submitted to the people and approved by them.

The history of the English Parliament shows that the functions which it performs at the present time are very different from those * Constitutional Limitations, p. 143.

which it discharged in former times. The idea which we now have of it is that it is a law-making, a law-creating body. But this was not its function in the earlier ages. It was designed to be not so much a law-creating as a law-preserving body. The existing laws and customs of the people were not to be changed by the king unless the parliament consented thereto. The principal concern of the people was to preserve their old laws and customs, not to enact new ones, or alter the old ones. The Great Charter of King John claimed to be a transcript of ancient laws, and not a creation of new rights and privileges. Its language was:

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"No freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or in any wise destroyed, nor will we pass upon him or commit him to prison unless by the legal judgment of his peers or by the law of the land.”

But it is noticeable that this document, so often referred to as the foundation of constitutional government in England, and as the basis of our liberties, contains no reference to the previous existence of any legislative assembly, and makes no provision for creating any such assembly in the future, although it provides for an election in each county of twelve knights whose duty it shall be to inquire of bad customs to be abolished in the manner specified in the Charter. Beyond providing an assembly for this repeal of bad customs, and for the imposition of taxes or aids, as well as for the conversion of military service due by tenure into the payment of a money rent, the people of that time do not appear to have been concerned about the subject of legislation.*

In Great Britain, we are told by a writer on the English Constitution, that the legislature chosen, in name, to make laws, "in fact finds its principal business in making and in keeping an executive”— meaning thereby the prime minister. The cabinet system prevailing in that country clearly weakens the legislative power. A cabinet often compels legislation by a threat of dissolution, or by a threat of resignation. The fear that if one votes against the ministry one may soon not have a vote at all, is a potential factor in securing the passage of measures which the ministry desire. The writer last referred to expresses the opinion that in England a strong cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration, and he declares that

* See Smith's History of the English Parliament, vol. 1, p. 100. + Bagehot on the English Constitution, 3d ed. p. 12.

+ Ibid, p. 23.

members of the House of Commons are mostly, perhaps, elected because they will vote for a particular ministry, rather than for purely legislative reasons,* the House of Commons being mainly and above all things an elective assembly. The election, he says, is now the most important function of the House of Commons. It does not rule-it only elects the rulers.†

The law-making power does not reside exclusively in the legislative department of government. It is found to exist in the judicial department, which creates law as well as interprets it. In theory the legislative and judicial departments of the government are separate and distinct. The function of the legislative department is to enact the law, while that of the judicial department is simply to interpret it. But while this separation may be theoretically complete, it is found not so in actual practice. You do not need to be reminded that the judges in our courts of last resort are obliged to legislate in cases which are new in principle, and in respect to which the legislative will is unexpressed. In such cases the courts make new rules, and in doing so exercise the legislative function. And this power the courts possess even under constitutions the most explicit in forbidding either of the three departments of government exercising the powers of the other two. The Massachusetts constitution of 1780, for instance, declared that the legislative department

"Shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”

But such a provision as this did not prevent, and was not intended to prevent, the judges, in deciding cases, from establishing new principles where the statutory law was inapplicable and no precedent could be found which governed the questions in dispute.

The courts exercise the law-making power not alone in cases where the legislative will is unexpressed. They exercise it as well in cases where it is expressed, when they are called on to interpret * Ibid, pp. 25, 142.

Ibid, pp. 132, 140. "A good horse likes to feel the rider's bit; and a great deliberative assembly likes to feel that it is under worthy guidance. A minister who succumbs to the House- who ostentatiously seeks its pleasure — who does not try to regulate it — who will not boldly point out plain errors to it, seldom thrives."

the meaning of the statute in which the legislative will is supposed to be embodied. To quote the words of an English bishop, spoken almost two hundred years ago, and quoted several times of låte:

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver, to all intents and purposes, and not the person who first wrote or spoke them.” Before him, and three hundred years ago, Montaigne had written:

"I am not much pleased with his opinion, who thought by the multitude of laws to curb the authority of judges.

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He was not aware that there is as much liberty and stretch in the interpretation of laws as in their fashion; human wit does not find the field less spacious wherein to controvert the sense of another than to deliver his own."*

Not only is it true that the courts make law, but they make more law than do the legislative bodies. Lord Mansfield is quoted as saying to a friend that in his judicial work he created more law than both houses of parliament.

The law of bailments resulted from an exercise of the law-making power of the judiciary in the great case of Coggs v. Bernard, when Lord Holt introduced the whole civil law relating to that subject into the common law of England. This branch of the law was not planted on its Roman foundation by any action of pafliament, but is pure and simple judge-made law. The law of insurance was practically created by Lord Mansfield. He it likewise. was who established our system of maritime law. ingrafting into the common law principles never enacted by the legislative department. He built up the commercial law of England. adopting from the law of the continent such principles as commended themselves to his judgment as most just and useful. So in the exercise of the law-making power of the judiciary. Lord Nottingham and Lord Hardwick reduced the principles of equity into a scientific system. The most useful and important principles of the law of contracts are not to be found in the statutes enacted by parliament, but were incorporated into the common law by judges who borrowed them from the civil law.

As between the legislature and the judiciary, the former is the superior law-making power of the state, as it has the authority to declare that the law as promulgated by the latter power shall not be * Montaigne's Works, p. 519.

law thereafter.

And the tendency of our times has been for this superior law-making power to narrow materially the domain within which this inferior power can legislate. It is evident that every time a legislature regulates by statute a subject which before was governed by the common law, it limits pro tanto the legislative power of the judiciary. For while a rule rests on unwritten law, the courts may modify or change it by a re-examination or reinterpretation of the previously decided cases; but they loose that right the moment the legislature passes a statute declaring a written rule. Then the power of the courts is confined simply to an interpretation of the language which the legislature has employed. To the extent that the law is codified, to that extent the judiciary is limited in its legislative powers. Codification means a transfer from the judiciary to the legislature of the development of the law, and an elimination, in very large degree, of the judiciary as a lawmaking power. When codification is accomplished, judicial legislation ceases except to the extent that it becomes necessary to construe the written language.

The law-making power of the courts is often attacked on the ground that it is "undemocratic," and that it is contrary to the genius of our American States that legislation should emanate from any but the people's representatives, and be other than an expression of the popular will. That the legislature of the States should seek to place limitations on the law-making power of the judiciary is in accord with the democratic idea. In the history of the exercise of the law-making power in the United States we might naturally expect to find the legislatures narrowing the bonds of judicial legislation in obedience to the imperious demand of the people that they should be permitted to formulate the laws through their representatives chosen for the purpose. But as a matter of fact, thus far in our history the demand that the courts should be deprived of their law-making power has been made almost exclusively by the members of our own profession, the people as such apparently taking little interest in the matter. It is also probably true that the profession, as a whole, has until lately been opposed to the change. In this country the movement in favor of a codification of the law began in the State of New York, with the adoption of its code of 1848. It was received in its own State with a tide of professional derision. We are told that in 1850, at a banquet of the New York City Bar, one of its most distinguished members