Page:Harvard Law Review Volume 32.djvu/903

BOOK REVIEWS 867 country. Hence one could wish, if we cannot hope for help from one who is a student both of law and of politics, that some lawyer would take up the subject in thoroughgoing fashion. Until he does, Dr, Carpenter's httle book will be useful. Although our political theory puts the legislative, the executive, and the judiciary as coequal in authority, with nothing before and nothing after, at first the hegemony was distinctly in the legislative, whence it passed in time to the judiciary, and has now in tium passed to the executive. In the earher part of our political history, legislatures were fully persuaded that the other departments, if accoimtable ultimately to the people, were directly and im- mediately accountable to them. In part this may have been due to the ex- ample of the British Parliament. In part it may have been due to the term "representative," which made the legislator seem and feel peculiarly the agent of the people. But this legislative supremacy derived its strength from the proved primacy of the legislative in colonial America, before the days of judicial justice and modern courts, and when the executive represented a government across the water. Accordingly in the first half of the last century legislatures believed themselves competent to call the judges to account di- rectly for their decisions and to interfere as of right with the disposition of particular controversies. Indeed the first half of the century had gone by before legislative appellate jurisdiction was wholly done away with. Perhaps the last echoes of the claim that the other departments were directly and immediately responsible to the legislative are to be found in the debates over the impeachment of Andrew Johnson. Next, for a season, and notably from the Civil War down to the first decade of the present century, the courts achieved a definite leadership, claiming to interpret and apply a higher body of law, merely declared in the Constitution, to which legislative and executive were subject and by which their acts must be measured. The legislative no longer made extravagant claims and the claim of the executive to be the peculiar mouthpiece of public opinion and to enforce the popular will upon legislators and courts was yet to come. For nearly half a century the judicial hegemony was scarcely disputed. Many things have combined to work a change. The pressure on judicial administration from the rise of new interests clamoring for recognition; the pressure of social legis- lation, not only causing jealousy of the common-law doctrine of supremacy of law, but often straining the elastic possibilities of the bill of rights; the pressure of demands for freer application of law involved in the mvdtiplication of public utilities, — all these would have made it hard for the American judiciary to maintain its hegemony in any case. Only strong courts, such as those which built it up could have preserved it. Not the least factor was the inabiUty of our state courts to do the work before them and the growth of executive boards and commissions with continually increasing measure of jurisdiction as a consequence. And this inability to deal adequately with a series of new problems, in striking contrast with the creative work of the classical period of American law, coincides with a gradual but definite decline in the caliber of the state courts, as a whole, which followed the general shift to an elective bench. It is at this point that Dr. Carpenter's work is least satisfactory to the lawyer. He dismisses a suggestion that the decline in judicial constructive power, which has made it seem sometimes that our common-law tradition was stricken with sterility, is connected with the popular election of judges by saying that "it would be very interesting if proof could be shown in support of this contention" (pages 210-11). The proof is at hand in the law reports for those who realize that there is more to be done in supreme courts than to decide constitutional questions, and more to be done in courts of first instance than to prosecute felons. It must be remembered that American law all but