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been discussed in the last decade, bearing on the work of the courts. Will not a thorough study of some of these questions by our profession, at a time when there is no public agitation, be attended with much better results than the changes which might be made in the heat of great public excitement? Governmental innovations, made during a time of extreme feeling, are often not well thought out.
I wish to call attention to two or three questions that deserve most serious consideration by lawyers and judges. The power of · the courts, now long established in this country, to decide acts of the legislative bodies unconstitutional, is a unique feature of our system of government. Most lawyers and judges in the past have agreed with Rufus Choate that the establishment of this principle, by written constitutions and the decisions of the courts, is one of the greatest achievements of statesmanship that the world has ever known. (Dillon, Laws and Jurisprudence of England and America, p. 199.) And yet the doctrine of judicial supremacy on questions of this kind has not commended itself to other nations. Germany and Switzerland have copied several features of our federal system, but they have never deemed it advisable to give their courts any such authority. During the recent discussion in the English Parliament as to the Home Rule Bill for Ireland, it was suggested that something like our Bill of Rights might be inserted as a part of such legislation, but that suggestion was strongly opposed, it being stated both in the Parliamentary debates and in the public press that this introduction of the American system into their government would choke the courts with litigation; that the lawyers would soon grow rich with such an enactment by attacking it on constitutional grounds; that the courts in Ireland, as in the United States, would become the supreme legislatures for the whole field of social and economic life; that judges were not trained for that kind of function, and that anyone who knew how this function was exercised by the judges of America would agree that such an enactment would erect one of the most galling of tyrannies. (Cohen in July, 1915, International Journal of Ethics, p. 489.) If written constitutions are to be of any permanent influence, must not some one branch of the government pass on the constitutionality of legislation? I am disposed to agree with that
great English constitutional writer, Professor Dicey, that the American system which makes “the judges the guardians of the constitution provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation.” (Dicey's Law of the Constitution, 7th ed. p. 133.) Why cannot the authority of the courts on this question be safeguarded or brought within narrower limits, without depriving them of that power? The courts frequently lay down the rule that a law should not be declared unconstitutional, except when it is so clearly and manifestly unconstitutional that all intelligent minds will reach the same conclusion with reference thereto. Is it not self-evident that this rule is disregarded when a law is declared unconstitutional by a divided court with a majority of one? Why not provide that a law should not be held unconstitutional by a court of last resort, except when some special number—above a bare majority of the court, concurred in such holding? By a recent amendment to the Ohio Constitution, it is provided that no law shall be held unconstitutional by the Supreme Court “without the concurrence at least of all but one of the judges, except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void.” (Graves' Constitution of Ohio, p. 18.) Surely no great evil can grow out of a provision of that character. That great thinker and law writer, the late James B. Thayer, in his biography of Chief Justice Marshall, has called our attention to some of the evils growing out of the courts, without careful consideration, declaring so many laws unconstitutional. He says, “the tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people and to deaden its sense of moral responsibility. It is no light thing to do that. What can be done? It is the courts that can do most to cure the evil, and the opportunity is a very great one. Let them resolutely adhere to first principles. Let them consider how narrow is the function which the constitutions have conferred on them—the office merely of deciding litigated cases; how large, therefore, is the duty intrusted to others, and above all to the legislature. It is that body which is charged, primarily, with the duty of judging of the constitutionality of its work. ... The judiciary today, in dealing with the acts of their co-ordinate
legislators owe to the country no greater or clearer duty than that of keeping their hands off these acts wherever it is possible to do it. ... There will still remain to the judiciary an ample field for the determinations of this remarkable jurisdiction, of which our American law has so much reason to be proud.” (Thayer's John Marshall, pp. 107-110.)
Another question that may well be studied is the separation of the executive, legislative and judicial functions. The distinction between the three branches of government cannot always be made clear, and it will often be found difficult to separate them by arbitrary lines in actual practice. The functions of each frequently overlap the others. Largely because of this fact, and the difficulties arising from this situation, in my judgment, has grown up in recent years a movement in favor of the administration of governmental affairs by boards or commissions. Doubtless many matters of a public nature, requiring summary action, can be better left to boards, commissions and the executive branch of government than to courts, but whether in the end government by those instrumentalities will be beneficial cannot now be told with certainty. A study of the decisions will show that the courts of last resort have not been prejudiced against, or even unfriendly to, this new class of legislation. It is manifest to anyone, however, who has given the subject thought, that the rapid multiplication of these boards and commissions in state and national government is adding very greatly to the public expense. The question of this added expense of government is in itself so important that it may well cause a full consideration of the fundamental principles of government before the scope of this character of governmental work is much further broadened or extended.
Perhaps more vital to the members of the judiciary than the questions I have discussed is that of so-called judicial legislation. That phrase is often used with a sense of reproach to the courts, as if it meant “judicial usurpation.” (Thayer, 5 Harvard Law Review, p. 172.) Some have argued that the judiciary never make the law, that it is founded on custom ; some that the courts simply interpret the law; others say that some law is legislative and some judge-made; while others contend that "all the law is judge-made law.” As early as 1713 Hale, in his History of the Common Law, said "The decisions of Courts of Justice do not
make a law properly so-called. . . . Yet they have great weight and authority in explaining, declaring and publishing what the law of this Kingdom is.” (Hale's History of the Common Law, 4th ed. p. 67.) Blackstone said that judicial decisions are "the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.” (I Blackstone's Commentaries, p. 69.) In Swift vs. Tyson, 16 Peters 1, speaking through Mr. Justice Story, our Federal Supreme Court said "In the ordinary use of language it would hardly be contended that the decisions of courts constitute laws. They are at most only evidence of what the laws are, and are not, of themselves, laws.” Most judges from the earliest record we have on this question down to the present time have declared that the courts neither made nor could make new law in deciding cases which came before them for adjudication. (I Hammond's Blackstone's Commentaries, p. 214.) To the contrary, many legal writers—including Holland in England and Pomeroy in our own country-have agreed with Prof. Gray that the judges practically make the law in deciding every case. Austin speaks of the “childish fiction” used by the judges in stating that “judiciary or common law is not made by them.” (Austin Lectures on Jurisprudence, Vol. 2, p. 655.)
Judges, notwithstanding they deny making the law, admit that law grows by the process of judicial decision. Coke said that the condition of human law is ever changing. Chief Justice Shaw stated that it was one of the great merits of the common law that instead of a series of detailed practical rules, established by positive provisions and adapted to the precise circumstances of particular cases, the common law consisted of a few comprehensive principles, founded on reason, natural justice and public policy, modified and adapted to all the particular circumstances of each case. (Norway Plains Co. vs. Boston & Main R. R. Co., 67 Mass. 263.) The common law has always been able to adapt and adjust itself to every new condition and situation. Justice Holmes in discussing this question said: “We do not forget the continuous process of developing the law that goes on through the courts, in the form of deduction, or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a
deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change but to work out the principles already sanctioned by the practices of the past.” (Stack vs. N. Y. & N. H. & H. R. R. Co., 177 Mass. 155, 158.)
It is manifest that on this subject of the making of law by the judiciary, the difference of opinion between writers and judges is, to a large extent, more apparent than real. Courts all agree that law grows by its judicial application, but insist that the gradual changes thus made in no true sense constitute legislation; while the writers holding different views insist that all change in the law, whether by courts or legislatures, in effect is legislation. The practice, says Dicey, of judges deciding one case “in accordance with the principle or supposed principle which governed a former case leads, inevitably to the gradual formation by the courts of fixed rules for decision which are in effect laws,"—that is, judicial legislation. (Dicey, Law of the Constitution, 7th ed., p. 58.) The fundamental basis of our theory of law is to search out and establish, so far as possible, certain general principles of justice known to all mankind, serving not only as a rule in particular cases, but as a guide for the future. The forming of such general rules, so as to bring about justice in the greatest number of cases, constitutes the science of jurisprudence. (Justice Buller, Story's Miscellaneous Writings, p. 208; Phelps Orations and Essays, p. 96.) Lord Mansfield said (Rex vs. Bembridge, 3 Douglas Reps. 327, 332. ) “ The law does not consist of particular cases but of general principles which are illustrated and explained by these cases." These fundamental principles of justice and right have always existed, but their application must necessarily vary with each particular case that arises in litigation. Some one has said that the difference between law made by the courts and by legislative bodies is, that by the first the changes are by short steps, and that by the last the changes may be and often are by much longer steps. The courts cannot override statute law and from the very nature of things they should not ordinarily override a long series of court decisions on any given subject. Therefore, in certain branches of the law,