The San Francisco call., 1899-05-18
JUDICIAL LEGISLATION.
HE body OF the common law though in theory
derived from immemorial CUSTOM is in reality

HE body of the common law though in theory
derived from immemorial custom is in reality
chiefly OF judicial creation The English
Judges, accepting certain principles rules and maxms
as fundamental extended their application from cen
tury to century, SO that in effect they exercised egis
atlve authority They have always charged uries on
matters of fact which has given them vast influence
IN the determination of practical issues Under the
arbitrary rule of the Stuarts when the Star Chamber
was in existence the last batch of corrupt and arbi
trary Judges known in English history dictated YER
diets and held life and liberty almost completely at
their mercy.
Judge-made law however irregular in its origin,
accomplished benehcent results under the great Lord
Mansfield, who drew from all available sources in
cludng the civil law, of which English Judges had
been profoundly jealous, and adapted and expanded
commercial Jurisprudence the necessities OF modern
times.
But when the Government of the United States
was established, the wise statesmen and patriots of
our country appreciatng the terrible danger to free
institutions in the Capitalization of power and in the
blending OF two dssinilar functions in the judiciary
Ill the first place accurately defined the limitations on
Federal authority, by holding it within an express
grant and essential implications and in the second
place, fundamental proposition, organized three
separate governmental departments each distinct from
the others, while all connected by the indis-
soluble bond OF the Union. Thus it happens that
from 1877 to the present time theory and until late
years substantially in practice the jurisdiction and
procedure in the Federal courts have been rgidly
confined within the of enabling statutes and such
implied powers indispensable to the effectua
administration of justice within those carefully de
fined limits. The constitutional amendments result
ing from the Civil War, justly designed to insure per
sonal liberty and the protection OF property greatly
increased the jurisdiction OF the Federal courts
1hey have always exercised the anomalous right of
expounding evidence before juries, which has oper-
ated to insure defeat justice according to the in
dvidual training opinions and practice OF the ncun-
bents OF the Federal bench. The people, however
have been jealous of judicial encroachments the
tendency to which is natural and marked that the
State constitutions, almost if not quite unanimously
have distinctly prohibited that kind OF interference
with jury trials
The gradual enlargement of the powers of the Fed
eral judiciary and its increasing exercise of legsla
tive functions of late years has been facilitated by
Congressional enactments that favor concentrated
and aggressive wealth, at the expense of the rooted
principles OF American institutions No more for
midabe or dangerous example OF this tendency could
be found than part OF the decision of Judge McKenna
in the grain rate case interpreted by Railroad
Commissioner Blackstock in his report ultimately
perfected with the assistance of William F. Herrin
The enormous advantage to be derived by the rail
road and by other oppressive monopoes from the
views thus disseminated can be readily perceived from
short extract: While the commission has con-
stitutional and statutory authority to regulate and
tx frelghts and fares, yet the be lust and
reasonable and the question whether or not they
are just and reasonable may be investigated and de-
termined by court OF competent jurisdicton"-that
is, by Federal tribunal 1t will be observed that the
law here declared is not that the court NAV decide
whether State commission has exercised some inteli
gence and some discretion in the adjustment of rates
but whether the rates as established are ''just and
reasonable The ultimate right, therefore, to deter
mine the main fact within the conceded Jurisdiction Of
the commission claimed to have been transferred 70
the Circuit Court Of the United States This means
that Federal Judge can exercise the identical func-
tions OF railroad commission, and if his judgment
approve the schedule, then it will stand but other
wise it will be set aside
1t is doubtful whether, in the exact case to which
we have adverted, final hearing the Circuit Court
or the Supreme Court of the United States would
justify this wholesale appropriation of authority But
the tendency, somewhat weaker now than three or
four years ago, is unquestionaby in that direction
and should be corrected by wise Congressional egis
ation equally Just to corporations and to the people
and equally restraining the illegal domnancy of par
ticular classes OF monoplies and the anarchcal ee-
ment that has apparently taken possession of the
Democratic party. In the State courts in reference
to mutual benefit and benevolent societies. recent de-
cisions have almost made them independent of the es
tabished tribunals OF the country and there are Fed
eral decisions somewhat on the line indicating
that great ursts have at least scented the danger we
have pointed out But the possibility of an unnatural
commingling OF judicial and Legislative functions
he rtad bv JaE,
ing no room for misconstructon There can be no
more vital necessity for the safety OF the republic
than firm adherence to the original distribution OF
powers between the three departments of govern
nent.