rough yet vigorous system of political, judicial and military organization which everywhere prevailed among the Teutonic tribes of the fatherland. Wherever a district of country was won from the native race, the conquerors encamped upon the soil; and then, after dividing the land upon the basis of that peculiar system that rested at once on military and tribal divisions, they organized self-governing communities which became nurseries of English customary law. Just as the English language is the outcome of the fusion of the dialects spoken in those local communities, so English customary law, as a distinct and entire code, is the outcome of the fusion of the customary or popular law developed therein. The primitive system of law which thus matured in the provincial courts of the English people, like all archaic law, took on an iron rigorism of form which rendered it unelastic. Its entire inadequacy to the wants of a progressive society never became apparent, however, until the Norman conquest drew England into the ma ch of the continental nations. The most important single outcome of that event was the centralization of justice through the establishment of a great court at Westminster by whose agency a new system of royal law, which found its source in the person of the king, was brought in to remedy the defects of the old, unelastic system of customary law prevailing in the provincial courts of the people. As soon as the new judicial system put into operation by the Normans was in working order "decisions of tribunals," as Digby has expressed it, "came to constitute in the strictest sense of the term a source or cause of law. Judge-made or judiciary law henceforth gradually displaces customary law." The English common law judges, in the exercise of perfectly legitimate and normal functions, thus undertook to enlarge the unelastic and inadequate primitive code by engrafting upon it new principles either formulated by themselves or borrowed freely from the current compendia of the Roman and Canon laws. Mr. Dicey has said very lately that "as all lawyers know, a large part and as many would add, the best part of the law of England is judge-made law--that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been made by Act of Parliament, and is not recorded

in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of judicial legislation. The amount of such judge-made law is in England far more extensive than a student easily realizes. Nine-tenths, at least, of the law of contract and the whole, or nearly the whole, of the law of torts are not to be discovered in any volume of the statutes." Law and Opinion in England, pp. 359-60.

While the customary law of England was thus, in fact, extended, modified and improved through case-law, in very much the same way in which the primitive Roman code was transformed through the responses of the jurisconsults, in theory, the means employed were held to be incapable of altering one jot or one line of the existing jurisprudence. By the baldest of legal fictions the new principles announced were assumed to be drawn from a preexisting nebulous body of English law, called the common law, ample enough to supply doctrines applicable to any conceivable set of circumstances. And yet effective as such means were in liberalizing and improving the English common law as such, they fell far short of the task to be accomplished. Just as it became necessary at Rome to build up outside of and apart from the primitive code, a distinct set of principles capable of superseding it called equity, so it became necessary to build up alongside of and apart from the English common law a like system under the same title. That process began with the growth of the equitable jurisdiction of the English chancellor which Lord Campbell has defined to be "the extraordinary interference of the chancellor, without common law process, or regard to common law rules of proceeding upon the petition of the party aggrieved, who was without adequate remedy in a court of law.” Thus the new body of equitable rules which began to flow from a royal source openly avowed that its right to supersede or supplement the primitive code rested upon the indisputable inadequacy of that code to then existing conditions. As the praetorian equity of Rome and the equity of the English chancellor thus grew out of the same necessity, it is natural that their comparative histories should reveal many common features. As a master of the subject (Sir Henry Sumner Maine) has said:

"The praetor was the chief equity judge as well as the great common law magistrate, and as soon as the edict had evolved an equitable rule the praetor's court began to apply it in place of or by the side of the old rule of the civil law, which was thus directly or indirectly repealed without any express enactment of the legislature." No better statement can be made of the process through which the same result was worked out in England. At Rome the growth of equity had its limits; it seems to have exhausted itself when the succession of jurisconsults comes to a close with the reign of Alexander Severus. Then follows a period during which, Gibbon tells us, "the oracles of jurisprudence were almost mute." From that time the history of Roman law is the history of the imperial constitutions and of the attempts finally made to subject the unwieldy body to codification. In the same way the expansion of English equity seems to have ended with the chancellorship of Lord Eldon, who devoted himself rather to harmonizing and explaining the principles announced by his predecessors than to the germination of new ones in gremio magistratuum. The most striking point of difference, of course, between Roman and English equity is embodied in the fact that the latter, despite its bulk, has always abhorred codification.

JUDGE-MADE LAW IN THE UNITED STATES.

The political dogma that the executive, legislative and judicial departments of government should be separate and distinct was first announced by Montesquieu, who accepted it and promulgated it in the modified form in which it existed in the English constitutional system. In that form it reappeared in the constitutions of the several states, and finally in the Constitution of the United States. When that dogma, which assumes the impossibility of one department encroaching upon the domain of another, was thus embedded in the most solemn form in our organic laws, jurisprudence was brought face to face with the ultimate question: Can any kind of a written code or constitution be devised by the wit of man for the government of an infant state sufficiently elastic to adapt itself to its ever chang

ing conditions, through formal amendments, without the expanding and adapting power of judge-made law? Leaving out of view the first twelve amendments to our federal Constitution, which were nearly contemporaneous with it, and really a completion of it, but three remain whose adoption, as all the world knows, was the outcome of civil war. Nothing is more generally admitted in the politics of this country than the fact that any reform is practically hopeless that depends upon the amendment, under normal conditions, of the Constitution of the United States. Experience has shown that the ponderous machinery provided can only be moved by the giant hand of revolution. Under such conditions, who can doubt for a moment that our federal Constitution, so justly regarded as "the most wonderful work ever struck off at a given time by the brain and purpose of man," would have been a hopeless failure but for the expanding and adapting power of judge-made law promulgated by that tribunal which has no prototype in history, the Supreme Court of the United States? At the outset neither the nature nor the extent of its powers were at all clearly understood. As late as January 2, 1801, John Jay, the first Chief Justice, in declining a reappointment, wrote to President Adams: "I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight and dignity which was essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess. Hence, I am induced to doubt both the propriety and expediency of my returning to the bench under the present system." Fortunately for the cause of good government throughout the world, Jay's wail of despair was a bugle call to a jurist who has exercised a wider influence, perhaps, than any other in the history of mankind. On the day of the first meeting of the Supreme Court in the permanent capital of the nation, John Marshall took his place for the first time as Chief Justice, and, as such, he sat in the midst of six associates for thirty-four years. The time was ripe for the advent of a jurist and statesman clear-visioned enough to sweep the entire horizon of federal power, and bold enough to press

each element of it to its logical conclusion. The success of his life work was assured by the manner in which he solved the problem of problems that awaited him. Thirteen years after the organization of the Supreme Court he announced, for the first time, in the case of Marbury v. Madison, that it possessed both the right and the power to declare null and void an act of Congress in violation of the Constitution. The invincible logic employed in the demonstration rested necessarily upon the admission that the august right in question was a mere deduction from the general nature of a system of government whose Constitution had failed to grant it in express terms. Such deduction was, of course, a pure creation of judge-made law. The only precedents that existed were to be found in the states, where it had frequently been held that a state court could declare an act of the legislature void because of repugnancy to the state constitution. The states had borrowed the idea from the action of the English Privy Council which sometimes annulled the acts of colonial legislatures when in conflict with colonial charters. After such charters were transformed into state constitutions, the Judicial Committee was superseded by the supreme courts of the several states. Finally when the new system of limitations on legislative power, thus born in the states, widened into national importance through its application to the legislative power vested in the unique Federal Republic created by the Constitution of 1787, the inevitable outcome was the Supreme Court of the United States, the only court in history ever endowed with the right to pass on the validity of a national law. When by the unaided force of irresistible judicial logic, Marshall lifted that right into the highest possible sphere, he wrought a revolution in the jurisprudence of the world by giving to judge-made law its widest possible expansion, an expansion for which no precedent could be found in the history of the past. And yet no jurist ever recognized more religiously than Marshall the difference that divides a system of organic law from a mere code of municipal law. In a leading case he said: “A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would