LEGISLATION AND JUDICIAL DECISION.

IN THEIR RELATIONS TO EACH OTHER AND TO THE LAW.*

MR. PRESIDENt, and Gentlemen of the GRADUATING CLASSES:

After the British troops had sailed away from Boston, and while the war of the revolution was still going on, John Adams and his compatriots, in framing the last paragraph of the declaration of rights in the constitution of Massachusetts, used these words: "In the government of this commonwealth, 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."

This division of governmental powers into three classes is found also in the federal constitution, and was adopted generally by the American states. On this occasion we are concerned with only two of these three classes. I shall speak to-day of legislation and judicial decision, complements of each other in the realm of law-unlike in features, but yet twin sisters in the family of social regulation.

In the infancy of law as a governing force in human society no such separation of the legislative from the judicial functions was possible. As an institution of government law has its origin and finds its support in the sovereign power. This is true alike when recognized authority resides in the sovereign people, and when it rests upon the will of an arbitrary monarch.

At the dawn of civilization, when the king was all powerful, he sat in his palace hall and settled disputes between his subjects as they stood before him face to face. He was both judge and legislator. In the beginning he decided cases without the aid of laws, sometimes according to his caprice, but oftener according to his sense of justice. His methods, compared with ours,

*Address delivered at the Yale Law School on June 24th, 1901, to the graduating classes.

mark the distinction between a government of laws and a government of men. He brought to his aid such customs and rules of morality as had begun to be recognized among his people, and by his application of them he gave them the sanction of positive law. Long before he assumed the work of direct legislation he was making decisions which were themselves a source of law. The modern conception of a judge as an expounder and administrator of laws already promulgated, was contradicted by the method of the primitive judge who created the law which he professed to declare. Rules of practice grew up under these decisions, which furnished a basis for formal legislation. New mandates were added, and individual laws became a system. As time went on, wise and progressive rulers framed codes which grew with the growth of civilization.

Such practices and methods show the origin and growth of English law. In the centuries which immediately followed the abandonment by Rome of her English possessions no one would have predicted that England would be the birthplace and home of a system of jurisprudence the most just and liberal that the world has ever seen. Her people were but little better than barbarians, and the domination of their chieftains showed few of the rudiments of civil government. But in later times, among the Saxon kings, there were lawgivers who prepared codes for the better government of their subjects. Ethelred, who began to reign A. D. 561, was the first of these, while Alfred, who came to the throne three centuries later, was the most celebrated. Nearly two centuries after the promulgation of Alfred's code a more elaborate system was prepared by Edward the Confessor.

In these times the Supreme Court was held in the king's palace and the king sat in person. In later years he was attended by his barons, and still later, judges selected from the barons administered justice in the king's name.

Under the early Saxon kings the Roman law was little known in England, and it had no direct influence in the administration of justice. But in the twelfth and thirteenth centuries there grew up a livelier interest in law as a science. Roman law, which for a long time had been an elaborate system, was taught in Italy and in some other continental countries, and was studied with enthusiasm by a few scholars. But in England it never was adopted in the secular courts. Pope Innocent IV, in the year 1254, is said to have issued this decree: "In France, England, Scotland, Wales and Hungary the imperial laws shall not be read, unless the kings of those countries

will have it otherwise. Causes of the laity are to be decided by customs, not by imperial laws; while for ecclesiastical causes the constitutions of the holy fathers will suffice." Whether such a decree was made or not, the Roman law prevailed in England only so far as it survived in ecclesiastical law, which kept control of questions of ecclesiastical status, controversies concerning lands given to the church by way of alms, the exaction of spiritual dues, and suits relating to marriage, divorce, and legitimacy. Thus the domain of the old Roman law and of the later ecclesiastical law was closely hedged about and limited.

All temporal lords and barons were bound to attend the king by their tenure. By the St. 14, Ed. III, the House of Lords was made a regular court for the decision of questions of law, and it has remained the court of last resort in England ever since. Under the statute "the Lords had the liberty of calling for the assistance of the judges whenever they found it needful to consult with them on points of law." This provision is still in force. The parliament met for the redress of grievances, the furnishing of supplies for the king, and the making of laws. In the early years of its existence legislation was its least important function. The king was for a long time the chief lawgiver. When the parliament acquired a voice in legislation, public acts began to be called statutes. An English statute, according to an old definition, is "anything decreed by the king's majesty, by and with the advice and consent of the Lords spiritual and temporal and commons in parliament assembled." This implies authorship and original authority in the king alone. Although there is now little left of the substance of this kingly authority, the original form of enactment of English statutes, which puts the king in the first place, remains unchanged.

English law in its origin and growth, as shown in this brief sketch, lacks many of the features of legislation and judicial decision in the twentieth century. Although it suggests interesting reflections, I have presented this dim outline of it, not so much for the lesson which it teaches as for a background for the more important delineation of legislation and judicial decision under the American sys

tem.

The division of civil government into three departments was not an original conception of the framers of constitutions in America. It previously had been recognized by Montesquieu and other learned writers as one of the bulwarks of civil liberty. But our ancestors, after the separation of the colonies from Great Britain, first made it

a foundation on which to build an enduring system. This method secures to each department complete independence of the others in its separate work in its own field. It opens a wide door for legislation, and introduces the lawmaking representatives of the people to a realm where they can breathe an atmosphere of freedom and enjoy the sunlight of progress.

Under our constitutions, legislators may well be astute to discover defects in governmental machinery, and to supply the requisites for perfect work. They may exercise their constructive faculties in building new systems adapted to the complications of human society. So far as they see errors to be corrected or wrongs to be righted they should be reformers. The elements of growth in governmental organization which reside among the people are entrusted to them as the people's representatives. If not nearer to the source of power than members of the executive and judicial departments, they are at least the people's trusted spokesmen, who are expected correctly to formulate their conceptions of political progress. They constitute the constructive force in the government, as distinguished from the managing and regulating forces. These last must take the equipment of the state as they find it, while they may provide a new equipment suited to its needs.

In devising and furnishing the machinery of the government they need to exercise a wise conservatism. Novelty may or may not be improvement. Change without improvement is always a detriment; for settled conditions and certainty in the management of public affairs are in themselves promoters of prosperity. With a boundless field open to legislators, the danger of too much legislation is ever present. There is a tendency to legislate too much in regard to trifles. Misconduct which might well be left to the reprehension of public opinion, and wrongs which are sufficiently redressed by civil remedies, often are made subjects of penal statutes. Without the broad view that results from reflection and experience, the hardship of an exceptional case often leads to legislation in disregard of general conditions. On the other hand, the increase in population, the establishment of new industries and the close and complicated relations into which men are brought in every walk of life, call for numberless statutory regulations which formerly were unnecessary. A sparsely settled state, inhabited mostly by agriculturists, needs but few laws. A densely populated manufacturing and commercial country needs many more.

The great advancement of the American people in the last hundred years along the lines of just and wise statutory regulation is

universally recognized. To say nothing of multitudinous laws on new subjects, the outgrowth of new conditions, there have been great reforms in many classes of existing laws. In England about a hundred years ago there were more than thirty distinct crimes punishable by death. But the rigor of the penal code has been so softened that in the mother country and in most of the American states murder and treason are the only crimes that subject the perpetrator to capital punishment. A century ago our jails were full of poor prisoners whose bodies had been taken by their creditors because of the non-payment of their debts. But imprisonment for debt, except in cases of fraud, has long been abolished. In early times in criminal trials the accused was not allowed the aid of counsel. Now the rights of persons charged with crime are carefully protected. Formerly, in civil as well as in criminal trials, the lips of parties and of all other interested persons were sealed, and in the search for truth courts groped their way in darkness, without the aid of statements from those who best knew the facts. Now all may testify, subject to the application of proper tests of veracity. Under laws then generally approved, our grandmothers lost their property as well as their independence when they bowed their heads to receive the matrimonial yoke. To the bride of to-day the law secures, not only the ancient privileges of married women, but many new rights, including the right to control her own property and earnings. Humanitarians and students of political and social science have given free expression to their views in our law-making assemblies, and their well directed efforts have not been in vain.

Nor have the courts been obstructive in interpreting and applying reformatory statutes. With all the conservatism that is necessary in adapting new laws to existing conditions and the customs of the people, the courts have gone forward hand in hand with the law-making power to create a system of jurisprudence that shall be worthy of a people of the highest intelligence. While statutes have been enacted for the simplification of procedure, the courts of their own motion have often disregarded precedents in non-essentials, and have sanctioned the omission of unnecessary verbiage, and have encouraged the statement of facts without formality, in clear and simple

terms.

The field of the common law, so far as it is left undisturbed by statutes, is for the court alone. The distinctive feature of the common law is that it is a growth, which has always adapted itself to new discoveries and changed conditions, and which is still capable