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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 to, 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 can be traced back to conditions in mediaeval England, is by no means to give it a clean bill of health. To

say that this habit has precedent for it is not necessarily to say that it is wholly good. To show that it has marked resemblances to conditions in Tudor England is not enough to shield it from the criticism of the twentieth century. I have differed in some historical points from the excellent article of Professor Roscoe Pound on "Common Law and Legislation,” in the Harvard Law Review of a year or two ago, but I do not feel that his views of the present relation of legislation and judicature are affected in any way by those differences, whichever of us should prove to be right. He says:“Our constitutional polity expressly contemplates a complete separation of legislative from judicial power.

Not only is a doctrine at variance with that polity inapplicable to American conditions, but if it ever was applicable, the reasons for it have ceased and it should be abandoned.” If my study has shown that the presentday extension of judicial action in America has

grown out of conditions in the England of an earlier day, it has shown another thing no less clearly-namely, that the government of Tudor England was a government of fused powers (while that of the United States to-day is a system of separated powers); and therefore, that the former activity of the judges in England was due to a fusion of governmental powers, not to a division of those powers. The extent of “judicial” activity under such conditions is a very dangerous precedent, if it is to be followed slavishly and applied without discrimination to a system in which there is a balance between divided powers,

where an encroachment of one department upon another may endanger the balance and threaten the whole. It is not fitting that the legal historian should follow precedent to such an extent as in all cases to justify the existence of legal rules merely because he finds for them an unbroken history or even a former usefulness. “The capital fact in the mechanism of modern states is the energy of legislatures.”

The fact that I have not been able to follow in all points the masters of English historical jurisprudence has had another result which probably needs explanation. It has made necessary quotations from pièces justicatives longer and more frequent than is usual in a writing which makes no claim to be a treatise. The illustrations were intended originally as illustrations merely. In some places, where the points illustrated were at variance with writers of authority, I have felt, however, that it would be presumptuous not to give further proof, and in such places more examples have been given, even at the risk of tediousness. This might seem to give the book an appearance in some places of aiming at an exhaustive treatment of the subjects covered; an aim which the performance would not justify, and one which has been as far as possible from my thoughts.

Many essential points concerning the development of English central institutions in the middle ages must be made less obscure before generalizations can be formed concerning them in any but a tentative way. In the case of the Receivers and Triers of Petitions in Parliament and one or two other points, I hope in the future to be able to offer some conclusions resulting from a detailed examination of the unprinted records. The materials upon which this study is based are only such as may be found in print in the larger libraries of the United States.

I have tried, in the footnotes and the notes at the ends of the chapters, to indicate in all cases the authorities or sources on which my statements are based. I have also at times placed in them discussions which the general reader might consider too technical. These footnotes will show how much I owe to writers such as Professor Dicey, Sir Frederick Pollock, Mr. Pike, and others. But no specific references can indicate the general debt I owe to the writings of the greatest English historian of our day. It is enough to say that this volume grew out of a paper which I had the honour to read, at a meeting of my colleagues, on the life and writings of Frederick William Maitland. Hitherto I have spoken mainly of the United States.

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