struction, and the ordinary criterion of the intrinsic merit of possible interpretations, or Blackstone's tenth rule, would suffice to justify the decision that it was not to be so applied. But Lord Nottingham is reported to have come to this conclusion "the rather because all acts which restrain the common law ought themselves to be restrained by exposition." It is curious that this dictum first saw light, nearly a century and a half after it was uttered, in the beginnings of the reform movement in England, when, in face of strong opposition from individual judges, Parliament was beginning to take a vigorous hand in making over the law. In this country the first announcement of it is in Brown v. Barry, in 1797. A statute of 1789 had provided that the repeal of a repealing act should not revive the act repealed, and the point decided was that an act suspending a former act for a limited time was not a repealing act within this statute. In coming to this obvious conclusion, Ellsworth, C. J., said: "The act of 1789, being in derogation of the common law, is to be taken strictly." Nor does the doctrine appear in institutional writers till the nineteenth century. In Wood's Institutes (1722) the dicta in Bonham's Case are set out as a rule of construction, and it is laid down that "the surest construction is by the reason of the common law." 2 As we have seen, the latter statement meant, in the authorities from which it was taken, no more than that common law and statute in pari materia were to be construed together. Blackstone (1765) discusses interpretation of statutes at some length and sets out ten rules. He refuses to accept the dicta in Bonham's Case and makes no mention of statutes in derogation of the common law or of any rules with reference thereto. Kent (1826) says that statutes are to be construed with reference to the principles of the common law because it is not to be presumed "that the legislature intended to make any innovation upon the common law further than the case absolutely required," and cites the argument of the minority judges in Stowel v. Lord Zouch. Finally in 1854 in Bouvier's Institutes we find it stated as a fundamental principle that "statutes in derogation of the common law 1 3 Dall. (U. S ) 365. The dictum in this case has been applied by the Supreme Court of the United States in McCool v. Smith, 1 Black (U. S.) 459, 490, and Show v. Railroad Co., 101 U. S. 557, 565. 2 Wood, Inst. 9, citing 2 Inst. 148, 301 a. I 31 Comm. 464. It should be remembered that Chancellor Kent had had some experience of democratic legislative activity, and was not at all in sympathy with it. Memoirs and Letters of Chancellor Kent, 178. "1 From this time the tide of de- are to be strictly construed." cisions and dicta runs steadily. fundamenta of American law. In other words this wise and ancient rule of the common law is, in substance, an American product of the nineteenth century. The English institutional writers of modern times, Broom, Stephen, and Campbell, are unaware of it. It does not appear in any institutional writer till 1854, and does not appear in any edition of Blackstone till 1870.* With quite as much warrant one may cite as the true and ancient doctrine of the common law the classical statement in Heydon's Case, wherein a sound and liberal canon of construction was laid down for all statutes "be they penal or beneficial, restrictive or enlarging of the common law." American courts, unrestrained by any doctrine of parliamentary supremacy, such as was established in England in 1688, found themselves opposed to legislatures, just as English courts of the sixteenth and seventeenth centuries had been opposed to the crown. They found in the books, over and above express constitutional limitations, vague doctrines of inherent limitations upon every form of law-making and of the intrinsic invalidity of certain laws. They soon wielded a conceded power over unconstitutional legislation. The great American institutional writer was an ardent federalist and had little faith in a popular legislature. The greatest of American judges, a man of like political sentiments, was not sure that "by general principles " legislatures were not bound to respect a bona fide purchaser for value as would a court of equity, and refuse to assert against him the rights of a defrauded people. Thus American courts were predisposed to look doubtfully upon legislative innovations. But the determining factor in the attitude of our courts toward legislation is doubtless to be found in the coincidence of a period of development through judicial decisions with one of great legislative activity. Usually legislative activity 1 1 Bouvier, Inst., § 88. Citing three cases: Melody v. Reab, 4 Mass. 471; Gibson v. Jenney, 15 Mass. 205; Look v. Miller, 3 Stew. & P. (Ala.) 13. The first of these deals with a penal statute. The second is a dictum. The third is a typical case. 2 The American editors of Blackstone were slow in recognizing it. Sharswood (1859) added five to Blackstone's ten rules without mentioning this point. Its first appearance in this connection is in Cooley's note to Blackstone's seventh rule, I Cooley's Blackstone, 88, n. 1 (1870). 3 It is not mentioned in Terry, Common Law (1906). 4 See notes I and 2, supra. 5 3 Reports 93. 6 Fletcher. Peck, 6 Cranch (U. S.) 87. has succeeded juristic or judicial activity. With us they happened to be coincident. Roughly speaking, the first century of American judicature was taken up with determining the applicability of the several doctrines of the common law to this country and working out the potential applications of common law principles to American conditions. Hence it was marked by fresh and living juristic thought and vigorous judicial law-making. For once, legislation had to contend with living and growing law of the discursive type instead of with the feeble offspring of a period of juristic decadence. If, however, we should concede that an attitude of antipathy toward legislative innovation is a fundamental common law principle, we should have to inquire whether that principle is applicable to American conditions and is a part of our American common law. "The capital fact in the mechanism of modern states is the energy of legislatures."1 American legislatures have been conspicuously active from the beginning. Moreover, our constitutional polity expressly contemplates a complete separation of legislative from judicial power. And this is in accord with the whole course of legal history.2 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. For one thing, the political occasions for judicial interference with legislation have come to an end. In the sixteenth and seventeenth centuries the judiciary stood between the public and the crown. It protected the individual from the state when he required that protection. Today, when it assumes to stand between the legislature and the public and thus again to protect the individual from the state, it really stands between the public and what the public needs and desires, and protects individuals who need no protection against society which does need it. Hence the side of the courts is no longer the popular side. Moreover, courts are less and less competent to formulate rules for new relations which require regulation. They have the experience of the past. But they do not have the facts of the present. They have but one case before 1 Maine, Early History of Institutions, Lect. xiii. 2 "As the development of law goes on, the function of the judge is confined within ever narrowing limits; the main source of modifications in legal relations comes to be more and more exclusively the legislature." Sidgwick, Elements of Politics, 2 ed., 203. This is well illustrated in Campbell, Principles of English Law (1907), in which more than half the references are to statutes. them, to be decided upon the principles of the past, the equities of the one situation, and the prejudices which the individualism of common law institutional writers, the dogmas learned in a college course in economics, and habitual association with the business and professional class, must inevitably produce.1 It is a sound instinct in the community that objects to the settlement of questions of the highest social import in private litigations between John Doe and Richard Roe. It is a sound instinct that objects to an agricultural view of industrial legislation. Judicial law-making for sheer lack of means to get at the real situation, operates unjustly and inequitably in a complex social organization. One might find more than one illustration in the conflict between judicial decision and labor legislation. But Dicey has pointed out a striking example in the operation of the equitable doctrines of separate property prior to the married women's acts. "The daughters of the wealthy," he says, "were when married, protected under the rules of equity in the enjoyment of their separate property. The daughters of workingmen possessed little property of their own. The one class was protected. The other would, it seemed, gain little from protection." 3 Whether the state exists only to secure "the individualistic minimum of legal duty," or to interfere with the activities of sane adults along paternal or even socialistic lines in the interests of the community at large, legislative law-making must be the chief reliance of modern society. But it is objected that statutes "have no roots" and are " hastily and inconsiderately adopted"; 5 that they are crude and ill-adapted to the cases to which they are to be applied, and are unenforced and incapable of enforcement; 6 and that they "breed litigation," 7 whereas, supposedly free from the foregoing defects, judge-made laws "rest on principles of right" and "are the slow fruit of longfought controversies between opposing interests." 8 Very little reflection is needed to show how ill-founded these oft-repeated state 1 "It is not to be expected from human nature that the few should be always attentive to the interests of the many." 4 Bl. Comm. 379. One must not forget that counsel on both sides belong to the same class and have had the same training as the judges. 2 Kelley, Some Ethical Gains through Legislation, 142. 3 Law and Public Opinion in England, 382. 4 Sidgwick, Elements of Politics, 2 ed., 343-344 5 Baldwin, Introduction to Two Centuries' Growth of Am. Law, 2. 6 Carter, Law, Its Origin, Growth and Function, 3. 7 Hornblower, A Century of Judge-Made Law, 7 Colum. L. Rev. 460. 8 Two Centuries' Growth of Am. Law, 2. ments are in fact. Dicey has shown that the married women's acts had very deep roots in the equity doctrines as to separate property.1 Can we say that homestead and exemption laws, mechanics' lien laws, bankruptcy laws, divorce laws, wills acts, statutes abolishing the common law disqualifications of witnesses, permitting accused persons to testify, and allowing appeals in criminal causes, had no roots? Do any judge-made doctrines rest more firmly upon principles of right than these statutes, or than Lord Campbell's Act or Lord St. Leonards' Act or the Negotiable Instruments Law? Do the refinements of equity and the ultra-ethical impossibilities which the chancellors imposed upon trustees have deeper roots or represent right and justice better than trustees' relief acts? Are any judicial decisions more deliberately worked out or more carefully adjusted to the circumstances to which they are to be applied than the draft acts proposed by the Conference of Commissioners on Uniform State Laws or the National Congress on Uniform Divorce Legislation? What court that passes upon industrial legislation is able or pretends to investigate conditions of manufacture, to visit factories and workshops and see them in operation, and to take the testimony of employers, employees, physicians, social workers, and economists as to the needs of workmen and of the public, as a legislative committee may and often does? Failures are not confined to legislative law-making. The fate of the fellow servant rule, of the doctrine of assumption of risk, and of the whole judge-made law of employers' liability, the Taff-Vale case in England,3 and the fate of judicial adjustment of water-rights in America1 should make lawyers more cautious in criticizing the legislature. Freaks of judicial law-making are abundant. Spendthrift trusts are 1 Law and Opinion in England, 369–393. 2 See Kelley, Some Ethical Gains through Legislation, 156. [1901] A. C. 426. See 5-6 Edw. VII, c. 47, § 4. 4 See Long, Irrigation, §§ 95, 98. 2 5 It has been held that a verdict of guilty in the "fist" degree is of no effect, Wooldridge v. State, 13 Tex. App. 443, and this decision has been deemed of enough importance to be published as a leading case, 44 Am. Rep. 708. Also that a verdict assessing punishment in the "state penty is fatally defective. Keeller v. State, 4 Tex. App. 527. Also that a verdict of “guity" is ineffectual. Taylor v. State, 5 Tex. App. 569; Wilson v. State, 12 Tex. App. 481; Harwell v. State, 22 Tex. App. 251. But a verdict of "guilly" or "guily" or "guitty" is good. Partain v. State, 22 Tex. App. 100; Currey v. State, 7 Tex. App. 91; Stepp v. State, 31 Tex. Cr. R. 753. What would be said of legislation that required such absurdities? For some further instances, decisions upon future interests in land in almost any of our jurisdictions may be referred to. See Zane, Determinable Fees, 17 HARV. L. REV. 297, 306. In Indiana the plaintiff was required by judicial decision to negative contributory |