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THE GREEN BAG
The tendency was strong to commit matters of unquestioned executive character to the courts, and no small number of statutes had to be rejected for such violations of the con stitutional separation of governmental powers. But the paralysis of administration produced by our American exaggeration of the com mon law doctrine of supremacy of law has brought about a reaction. And that reac tion . . . has brought back the long obsolete executive justice, and is making it an ordi nary feature of our government. "Contemporary legislation shows clearly enough that the recrudescence of executive justice is gaining strength continually and is yet far from its end. . . . Nor is the legis lature alone in bringing back this extra legal — if not anti-legal — element to our public law. A brief review of the course of judicial decision for the past fifty years will show that the judiciary has begun to fall into line, and that powers which fifty years ago would have been held purely judicial and jealously guarded from executive exercise are now decided to be administrative only and are cheerfully conceded to boards and com missions. "As yet, the judicial acquiescence in the revival of executive justice is a tendency only. The courts are not agreed; some courts hesitate, while some are willing to give up everything but formal actions at law and suits in equity. The tendency, however, is well marked. In general, the cases prior to 1880 tend to hold all matters involving a hearing and determination, whereby the liberty, property, or fortune of the citizen may be affected, to be judicial and not capable of exercise by executive functionaries. Since 1880, the cases, at first requiring an appeal or a possibility of judicial review, but later beginning to cast off even that remnant of judicial control, tend strongly to hold every sort of power that does not involve directly an adjudication of a controversy between citi zen and citizen — and in the case of disputes over water-rights and election-contests some which do — to be administrative in character and a legitimate matter for executive boards and commissions." Mr. Pound sees " in this recrudescence of executive justice one of those reversions to
justice without law which are perennial in legal history and serve, whenever a legal system fails for the time being to fulfil its purpose, to infuse into it enough of current morality to preserve its life. "Equity, both at Rome and in England, was originally executive justice. It was a reversion to justice without law. The praetor interposing by virtue of his imperium, .the emperor enforcing fideicommissa, ' having been moved several times by favor of par ticular persons,' the Frankish king deciding, not according to law but secundum asquitateni for those whom he had taken under his spe cial protection, and the Chancellor granting relief ' of alms and charilie,' acted without rule in accordance with general notions of fair play and sympathy for the weaker party. The law was not fulfilling its end; it was not adjusting the relations of individuals with each other so as to accord with the moral sense of the community. Hence praetor or emperor or king or chancellor administered justice for a' season without law till a new and more liberal system of rules developed. The executive justice of to-day is essentially of the same nature. It is an attempt to adjust the relations of individuals with each other and with the state summarily, accord ing to the notions of an executive officer for the time being as to what the public interest and a square deal demand, unincumbered by rules. The fact that it is justice without law is what commends it to a busy and a stren uous age. Hence we must attribute the pop ularity of executive justice chiefly, if not wholly, to defects in our present legal system; to the archaic organization of our courts, to cumbrous, ineffective, and unbusinesslike procedure, and to the waste of time and money in the mere etiquette of justice which for historical reasons disfigures American prac tice. Executive justice is an evil. It has always been and it always will be crude and as variable as the personalities of officials. . . . Nothing but rule and principle, stead fastly adhered to, can stand between the citi zen and official incompetency, caprice, or cor ruption. Time has always imposed a legal yoke and incorporated its results into law. But any justice is better than injustice. The only way to check the onward march of ex
