Congress shall make no law for the establishmen. of religion. In other cases it is not expressly written. One of the most remarkable peculiarities of this constitutional jus legum is that it binds judges in deciding as well as legislators in legislating. This peculiarity is intimately connected with the subject of this Essay. Does the constitution express or imply the truth that its jus legum, which binds legislators in legislating, also binds judges in deciding? According to the chief contention of this Essay, the constitution expresses that truth and does not merely imply it.

CHAPTER XI.

Further consideration of the relation of the Roman law to the subject.

DIVISION A.

Of the views of the Civilian Bowyer on the constitution of the United States.

DIVISION B

Of the Roman law of mandate and the delegation of legislative power.

DIVISION C.

Of Vattel's doctrine concerning legislative power and the relation thereof to the Roman law of mandate, on one hand, and to American constitutions, on the other.

Chapter XI. will further consider the relation of the Roman law to the subject. The next matter concerning that law requiring examination is a general one. It is this: Do the general principles of the Roman or Civil law raise any presumption contrary to the propriety of judges criticising a law made under a written constitution, in order to ascertain whether it is actually constitutional or unconstitutional and valid or void accordingly?

DIVISION A.

Of the views of the Civilian Bowyer upon the constitution of the United States.

In this connection the views of the English Civilian Bowyer may be referred to with much edification. His works contain sympathetic appreciations of the constitution of the United States which are made from the point of view of one familiar with both American works upon constitutional law and Civilian works upon public law. In discussing American views upon the "right of the courts to pro"nounce legislative acts void, because contrary to the con"stitution," he-is of opinion that "this doctrine is strictly "in accordance with the principles of public law. The act "of a delegated authority contrary to the commission or "beyond the commission under which it is exercised, is "void. Therefore no legislative act, contrary to the consti"tution, can be valid." In support of this proposition, his authority is the text of the Roman law, Dig. lib. 17. tit. 1. 1.5: "Diligenter fines mandati custodiendi sunt: nam "qui excessit, aliud quid facere videtur." ("The limits "of a mandate are to be diligently preserved; for he who "has exceeded them is deemed to do something other "than that in the mandate.") Bowyer: Universal Public Law, 343, 344.

In his Readings in the Middle Temple in 1850, pages 82, $3. Bowyer also discusses the same subject. He observes: We may safely say that the federal government of the

"United States could not long exist without the extraordi'nary jurisdiction which we are now examining. "The act of a delegated authority, contrary to the commis❝sion or beyond the commission under which it is exercised, "is void. Diligenter fines mandati custodiendi sunt: nam "qui excessit, aliud quid facere videtur. He who acts be"yond his commission acts without any authority from it. "Now the judicial power can declare void the acts of the "legislative power where those acts are beyond the dele"gated power of the legislature, and therefore not legisla"tive acts except in form only. These con"stitutional questions are cases of conflict between a funda"mental law and an ordinary act of the legislature, in which "the judges must be governed by the fundamental law. Thus the ordinary statutes of the United "States are lex sub graviori lege."

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The grave importance of this application of the Roman law requires it to be remembered that the text of the Roman law in question (Dig. lib. 17. tit. 1. l. 5) relates to matter of private right and that Bowyer applies it to matter of public right. There is, however, important authority for the application of the rules and principles of mandate to public law. This is expressly stated by Bowyer himself, in his work upon the Civil Law, pp. 225, 226, 227. This he does upon the authority of publicists whose writings were familiar to the Framers of the constitution: Vattel, IV, 5, par. 56; Puffendorf, III, 9, par. 2; Grotius, II, 2, par. 12; II, 21, par. 1; III, 22, par. 4, No. 2.

DIVISION B.

Of the Roman law of mandate and the delegation of legislative power.

The cases from Vattel, Puffendorf, and Grotius may be deemed conclusive as to the application of the Roman principles of mandate to public as well as to private law upon one condition, namely, that a power to legislate is such a one as can be given by a mandate. All the cases just re

ferred to relate to other descriptions of public powers. The question, therefore, arises whether according to the Roman law a power of legislation could be given by mandate. To this question an affirmative answer can be given.

During the republican period, the legislative power belonged to the Roman people. By a process of revolution they lost it and the Roman emperor became lawgiver. But the legal view differed from the historical view. In notion of law, the emperor derived his title to his legislative power from the Roman people. They were held to have granted to him by a law, called the lex regia, the imperium and potestas belonging to themselves. See Inst. lib. 1. tit. 2. § 6, Gaii Inst. I. 5, Dig. lib. 1. tit. 4. l. 1. Even if no lex regia was in fact enacted, the notion of its existence was accepted as true by lawyers and others including the people themselves. If this notion was erroneous, it is not the only great case in history in which the official statement concerning fundamental legislation is erroneous.

Bowyer points out that, although the lex regia was apochryphal, yet the assertion of such a delegation of sovereign power to the emperor by the people, makes it evident that the Roman law did not attribute a divine origin to the imperial authority.*

The eminent historian, Prof. Mommsen, has examined the Roman law of legislation under mandate. His treatise on the Lex for Salpensa and the Lex for Malaca contains important observations relating to the emperor's power of legislation. The correct legal view, he holds, is that it was based on the lex regia and was a power of legislation given by the mandate of the people to the emperor. Mandates delegating legislative powers had existed in the republican period. Legislation by the Roman people, he terms immediate. That made by virtue of a mandate to exercise legislative power, he terms mediate legislation.

Among the questions which Mommsen had occasion to discuss are two here requiring notice. One is whether a

*Bowyer's Civil Law, page 29.

In the Proceedings of the Royal Saxon Society of Sciences, vol. 3, pages 390 et seq.

single individual could receive the delegation of such legislative power. This he answers in the affirmative. The other is whether the term lex was ever applied to any of the acts of legislation enacted by such an individual. This second question he answers affirmatively also. Examples of leges mediately enacted are stated to be found in the republican period in cases in which the Roman people granted to a magistrate having imperium, (who was usually a military commander-in-chief), either the legislative power of giving the right of citizenship to foreigners, or the power of enacting legislative regulations for dependent communities or provinces. A more ancient example is found in the power of a Roman citizen to make his testament in the cases in which the proceeding by mancipation was used.* This power was based upon a general mandate given by the twelve tables to every individual citizen respectively to enact mediately a lex in a case in which the popular curiae had previously done so immediately.

That the emperor had included in the legislative power delegated to him individually the right to legislate for a dependency such as Malaca in the form of a lex and to do so without innovating, is held to have been unquestionable in point of law. "Just as a judicium could proceed from im"perium given by mandate as validly as from original impe"rium, so a lex could proceed from power of legislation given "by mandate as validly as from original legislative power. "The technical term for passing mediate legislation is legem "dare, as that for passing immediate legislation on rogation "of the people is legem rogare: so that our municipal law "is termed a lex data. In this shape, the mediate legisla"tion by the emperor continued to be exercised for making "grants of citizenship and conceding municipal rights, long "after the immediate legislation by the people had become "antiquated."

Recurrence may now be had to Sir George Bowyer's opinion concerning the constitution of the United States. He holds that its system of legislative and judicial powers is *See Gaii Inst. II. 101, 102, 103.