by others than those claiming under a patent, provided the publication is accompanied by bona fide notes.*

Of the English doctrine of prerogative copyright, there is, it is believed, no trace in this country. The laws, whether of the Union or of the States, may be published by any one; though, generally, the editor of a newspaper is appointed by the government as state printer, who publishes the first regular copy of the federal or State statutes. In regard to the decisions of the Supreme Court of the United States, it has been determined that, under the act of Congress by which an official reporter is appointed, there can be no copyright in the written opinions of the court; but that the reporter may have a copyright in his own marginal notes, and his arrangement of the arguments of counsel.+

Several of the State constitutions contain provisions on this subject. In California the constitution declares, that "the legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient; and all laws and judicial decisions shall be free for publication by any person." The constitution of Iowa provides,§ that "no law of the General Assembly, of a public nature, shall take effect until the same shall be published and circulated in the several counties of the State, by authority. If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the

* Maugham on Copyright, p. 106; 2 Evan's Statutes, 19, note 11. † Wheaton vs. Peters, 8 Peters, 591, 668; Gray vs. Russell, 1 Story, 11. Constitution, Art. vi. § 12.

§ Art. iv. § 27.

State." The constitution of Wisconsin declares,* that "the legislature shall provide, by law, for the speedy publication of all statute laws, and of such judicial decisions, made within the State, as may be deemed expedient. And no general law shall be in force until published." The constitution of Michigan declares,† that "the legislature shall not establish a State paper. Every newspaper in the State, which shall publish all the general laws of a session within forty days of their passage, shall be entitled to receive a sum not exceeding fifteen dollars therefor. The legislature shall provide for the speedy publication of all laws of a public nature, and of such judicial decisions as it may deem expedient. All laws and judicial decisions shall be free for publication for any person." In New York, the constitution provides, that "the legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person."

The greater the publicity that is given to the statute law, of course, the better; but, notwithstanding these constitutional enactments of so many of the States, it appears to me not difficult to prove that our governments should retain some control over the publication of the judicial decisions of their courts. The publication of decisions in individual cases may, indeed, with propriety, be left free; but the publication of collections of reports is a matter too immediately connected with legislation to be left without any supervision whatever. As it is now, we are, in some of the States, flooded with reports of cases, a great

*Art. vii. § 21.

† Art. iv. §§ 35 and 36.

Art. vi. § 22.

many of which are entirely trivial, or only tend to increase the uncertainty and perplexity of the law, and greatly to augment the labor of all those concerned in the administration of justice. Our reports are our law, and the publication of reports is, in fact, the enactment of laws.

CHAPTER V.

OF THE BOUNDARIES OF LEGISLATIVE AND JUDICIAL

POWER.

Division of Legislative and Judicial functions in England-Bills of AttainderDivision in this country-Disputed power of judiciary, independently of interpretation and constitutional limitation-What is a Law?-Power of the State Legislatures examined-Retrospective Laws-Result of the examination-Judicial power of construing doubtful provisions of written law-History of its exercise in England-In France-Present condition of the law on the subject-Power of the judiciary to enforce constitutional restrictions.

HAVING endeavored, in the preceding pages, to give a general idea of the sources of our jurisprudence, of the classification of laws, and of their various parts and incidents, we now approach the subject of the construction of statutes in doubtful cases. But some preliminary considerations still present themselves. Before entering on the details of interpretation, it is indispensable to have as correct an idea as is practicable of the division of power in the political systems which derive their origin from the great English sources; in other words, to understand, if possible, the precise boundaries of the legislative and judicial functions.* The questions which we are now about to

* Part of Mr. Dwarris' eleventh chapter, pp. 694 to 712, is devoted to a very intelligent treatment of this subject. "The boundaries of legislation and of judicial interpretation sought to be ascertained." He puts it, however, after the discussion of the rules of construction. It seems to me that a correct notion of the division of power should precede the consideration of the exer

consider have no place in absolutely despotic governments; where all power is centered in a single hand, there now, as under the absolute forms of the later Roman government, the will of the sovereign makes, applies, modifies, and interprets the law: quod principi placet, legis habet vigorem. The Emperor Justinian, in a rescript to his prefect, Demosthenes, uses this language: "We declare the imperial construction of laws, whether made on petition or in suits, or in any way whatever, to be absolute and final. For if the sovereign alone can make laws, he alone should interpret them; why else, when questions have arisen in litigated controversies, have they been brought to us? and why, too, have judicial doubts reached our ears, if interpretation does not proceed from us alone? Who, indeed, is competent to solve the enigmas of the law, except he to whom alone the power of legislation is conceded? These absurd cavilings are, therefore, to cease, and the emperor to be regarded the only interpreter, as he is the only maker of laws."* Under a

cise of the power. This part of Mr. Dwarris' eleventh chapter is reprinted by Mr. Smith, and forms his tenth chapter on Legislation and Judicial Interpretation.

* Definimus, autem, omnem imperatorum legum interpretationem, sive in precibus, sive in judiciis, sive alio quocumque modo factam, ratam et indubitatam haberi. Si enim in præsenti leges condere soli imperatori concessum est, et leges interpretari solo dignum imperio esse oportet; cur autem ex suggestionibus procerum, si dubitatio in litibus oriatur, et sese non esse idoneos vel sufficientes ad decisionem litis illi existiment, ad nos decurratur, et quare omnes ambiguitates judicum, quas ex legibus oriri evenit, aures accipiunt nostræ, si non a nobis interpretatio mera procedit? Vel quis legum ænigmata solvere, et omnibus aperire idoneus esse videbitur, nisi is cui soli legislatorem esse concessum est? Explosis, itaque, his ridiculosis ambiguitatibus, tam conditor quam interpres legum solus imperator juste existimabitur.-Cod. de Legibus, Lib. i. Tit. xiv. § 12. Such was the language that the master of the ancient world could, with impunity, make use of. Christendom now happily offers no parallel, unless, indeed, it be Russia.