D

R. Augustus Jessopp, in the Preface to his Studies

by a Recluse, says: "Three years ago I published a collection of papers which I had the presumption to call Historic Essays, in which some of the critics discovered, as a matter of course, a bad blunder or two, and therefore proceeded to censure me for presumption. The fact is, that I was still possessed by the oldfashioned notion that the word 'essay' meant an attempt and nothing more." It is only in this old-fashioned sense that I have ventured to call this volume an "essay.” In it I have concerned myself only in tracing the history of certain legal ideas. The conclusions that have seemed to me to be deducible from the facts met with in this historical survey may be summarized as · follows:

(a) England after the Norman Conquest was a feudal state, i. e., its political character is better expressed by the word feudal than by the word national. (b) As a consequence, her central assembly was a feudal assembly, with the general characteristics of feudal assemblies. (c) One of those characteristics was the absence of law-making. The law was declared rather than made. (d) The law which existed and was thus declared was a body of custom which in time grew to be looked upon as a law fundamental. Rules inconsistent with

this fundamental law were void. Such a law was recognized in England down to modern times. (e) Another characteristic of the times was the absence of a division of labour between different "departments" of government and the lack of any clear corresponding distinctions in governmental activity, as “legislative,” “judicial,” or “administrative.” (ƒ) Parliament, the highest "court" of the Realm, in common with the lower courts, participated in these general functions of government. It both "legislated" and "adjudicated," but until modern times no clear distinction was perceived✓ between these two kinds of activity, and the former being for long relatively the less important, we may say roughly that Parliament was more a court than a legislature, while the ordinary courts had functions now properly called legislative as well as judicial. (g) "Acts" of Parliament were thus analogous to judgements in the inferior courts, and such acts were naturally not treated by the judges in these courts as inviolable rules made by an external omnipotent legislative assembly, but rather as judgements of another court, which might be, and were at times, treated as no modern statute would ever be treated by the courts to-day.

The "legislative" activity of our courts to-day in the United States is a fact that is rightly attracting great attention at the present time, as is shown by the number of recent monographs and articles upon it. It

is a subject of the utmost consequence. This legislative activity is no mere accident; it must have causes, and some of these must be historical causes. Some investigation of these is absolutely prerequisite to any thorough understanding of our judicial system, and to a perception of the kind of changes which would most likely tend toward its betterment. This essay is offered as an attempt to account on historical grounds for the growth of these great powers now exercised by our courts, greater here than in England, because the like tendency was there checked by the growth in the seventeenth century of a new doctrine of parliamentary omnipotence.

I entered upon this study without preconceptions. During the course of it I came to the conclusion that the weight of contemporary evidence was against some views held by men whom I have always looked up tc, and shall always look up to, as my leaders and guides in this field. As these divergences of views were not on matters of detail, but concerned things which are the very marrow of the subject under discussion, this has unavoidably given to certain parts of the book a polemical cast, and might lead one to think that it was written from the beginning merely to bolster up a preconceived theory. Such is not the case. Accepting the fact of the great and far-reaching activity of our courts, I have here merely tried to trace the tendency

historically back to mediaeval England, where I believe it has its origin; with the later, or American part of the development, I have had nothing to do.

In my treatment of this subject I have tried to keep within the limits I set for myself at the beginning. Though I have argued against historical views which seemed insufficiently supported by evidence, I have done so without considering the bearing of those arguments upon controverted questions of to-day. Our legal institutions, in common with our other institutions, may be looked at in two ways. Even men's highest religious beliefs and aspirations may in all probability be rightly traced back to instincts which are so elemental and "low" that they are shared by animals far down in the scale of life. By demonstrating this humble origin, and the gradual development out of it, some scientists have supposed that they were disposing of the claims of religion upon the attention of men. They have assumed that a judgement—to use Professor William James's expression-which is purely "existential" has validity also as "a proposition of value." Thus to mistake the history of an institution for its rational justification seems to me a confusion of the worst sort.

In like manner, to say that the present attitude of our courts toward statutory enactment has an historical basis, to hold as I do that it is a judicial habit which