THE JUDGE AS A POLITICAL FACTOR
THE
663
JUDGE AS A POLITICAL FACTOR By Andrew Alexander Bruce BY far the greater part of the law of sentence comprised in the same, shall be both England and America is, and of taken and accepted according to the plain necessity must be, judge and not legislature words and sentences therein contained, and made. Paradoxical though it may seem, shall not be interpreted nor expounded by we are and must in the main be governed by color of any pretense or cause or by any our courts and not by our legislatures. subtle argument or invention or reason to The judge in the history of legal develop the hinderance, disturbance or derrogation ment antedated the legislature. The father of this act or any part thereof. " But it despotically settled the quarrels of his was within the power of the courts of that children, the chief of his followers, the time and it is within that of the courts of king of his subjects, and the judgments which to-day to sneer even at so plain a statutory they rendered and the customs which they provision, for without judicial sanction and recognized were crystalized into law, long enforcement an act of parliament is a before there was any organized system of nullity. In the United States the legislative legislation. The province of the legislature, power of the judiciary is even greater than indeed, is and always has been to supple it is in England. Our constitutions indeed, ment and to change, rather than to originate. as construed by the courts, have made the The activities of the English parliament and American governments, both state and of the American legislatures have of neces national, pre-eminently governments by the sity been much more in the direction of judiciaries, and this not only in matters correcting and modifying and expanding the which are political and governmental but in already judge-made body of law than of those which are social and industrial. When building up any legal structures of their own. asked to set aside or to refuse to enforce an While through the many centuries of the act of the Chamber of Deputies, the French growth of the English and American juris judge will shrug his shoulders, "Qu'il faut," prudence the legislatures and parliaments he will say, "does not the Chamber of have met only for limited periods and at Deputies understand the Constitution as irregular intervals, the courts have been in well as we, and is it not equally bound to almost continuous session and have been respect it? Shall we judges put ourselves constantly called upon to lay down rules above the legislature, above the representa of practice and of conduct in matters con tives of the people?" And it would have cerning which the legislatures have not certainly been within the power of the spoken. Not only this, but they have American judges to have yielded to this possessed the great prerogatives of construc legislative discretion, and to have refrained tion and enforcement. Even in England, from entering in any large degree into the where parliament is supreme, a legislative industrial conflict. But Anglo Saxons are body and a constitutional convention in one, not Frenchmen. It is not an Anglo Saxon and where the necessity of conforming to the trait to hesitate at wielding the power with requirements of a written constitution is not which one finds himself possessed nor to present, the legislative power which these stretch out to gain more. Instead of prerogatives confer is fully recognized. refusing to interfere, the American courts, "And be it finally enacted" protested a both state and national, have so construed parliament of Henry the VIII,1 "that the the words "property" and "liberty" and present act and every clause, article and the term "due process of law" which are found in the 14th Amendment to the 28 Henry VIII, ch. 7, Sec. 28.
