Dane's Abridgment, De Lolme's English Constitution, Digest, Novels and Pandects, Discon's Préliminaire du Prémier Projé de Code Civil, Dwarris on Statutes, Doctor and Student, E Domat's Public and Civil Law, Erskine's Institutes, Federalist, Glanville, Greenleaf on Evidence, Grotius D. Des Guerre et a la Paise, Hall's Journal of Jurisprudence,. Hargrave's Tracts, Holme's Annals, Hooker's Ecclesiastical Polity. Humphrey's Observations on Real Property, Hutchinson's Collections, Hutchinson's History of Massachusetts, Kent's Commentaries, Kauffman's Mackelday, Leache's Crown Cases, Letters of Lord Kame, Lock's Works, Lord Kame's Principles of Equity, Lord Woodham's Memoirs, &c., of Lord Kame, Miller's English Government, Noy's Maxims, Paley's Moral Philosophy, Parliamentary History, Park's History of Court of Chancery, Phillipps' Evidence, Plowden's Commentaries, Puffendorff's Law of Nature and Nations, Reeve's History English Law, Rutherford's Institutes, Rolle's Abridgment, Sheppard's Touchstone, Steven's English Constitution, Steven's Election Law, Story on the Constitution, Taylor's Civil Law, Trumbull's History, Thomas' Universal Jurisprudence, STATUTE AND CONSTITUTIONAL LAW, AND CONSTRUCTION OF STATUTES. CHAPTER I. ORIGIN AND HISTORY OF LEGISLATIVE AUTHORITY. § 1. Of all kind and degrees of authority which man exercises over man that of legislation is the most august and supreme. A power of legislation, that is, the authority of enacting not only temporary and occasional ordinances, but durable and general laws, is, in the hands of a single person an alarming excess of dominion; hence in almost all modern governments, the sovereign power is divided among different and co-ordinate departments of government. § 2. The author of Parliamentary History has said that in all nations in the world hitherto known, and in all ages, the laws they were governed by, were first made by the advice and consent of general assemblies, and then promulgated to the whole community. In this he is probably mistaken; for such was not the character of the power exercised by the ancient Roman emperors in their lex edictalis, though they avowedly claimed it by a grant from the people, conveyed in that instrument called "Lex Regiæ," and containing a formal surrender of their liberties, which had long before been extorted from them. This Roman instance of a single power of enacting stable and universal laws was the most absolute sovereignty that can in any country be actually traced. § 3. Gibbon is of the opinion that the primitive government of Rome was composed of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate, and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of the votes in the thirty curia, or parishes of the city. From Augustus to Trajan the modest Cæsars were content to promulgate their edicts in the various characters of a Roman magistrate, and in the decrees of the senate. Hadrian appears to be the first who assumed, (and without disguise,) the plenitude of legislative power. The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, "the gloomy and intricate forest of ancient laws were cleared away by the axe of royal mandates and constitutions." During four centuries, from Hadrian to Justinian, the public and private jurisprudence was moulded by the will of the sovereign. The origin of imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double fiction was propagated by the servility, or perhaps the ignorance of the civilians who basked in the sunshine of the Roman and Byzantine courts. To the prayer of the ancient Cæsars, the people or the senate had sometimes granted a personal exemption from the obligation and penalty of particular statutes; and each indulgence was an act of jurisdiction exercised by the republic over the first of her citizens. This humble privilege was at length transformed into the prerogative of a tyrant; and the Latin expression of "released from the laws," was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elec tive magistrate. But it was not before the ideas, and even the language, of the Romans had become corrupted, that a royal law, and an irrevocable gift of the people were created by the fancy of Ulpian, or more probably Tribonian himself; and the origin of imperial power, though false in fact, and slavish in its consequences, was supported on a principle of freedom and justice. "The pleasure of the emperor had the vigor and effect of law, since the Roman people, by the royal law, had transferred to their prince the full extent of their own power and sovereignty. The will of a single man, of a child perhaps, was allowed to prevail over the wisdom of ages, and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legislation could be safely deposited. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink, and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. § 4. In eastern countries, the ancient and established seat of despotism, the laws, properly so called, seem for the most part to have been immutable, by whatever authority they were originally framed, and the decrees of the monarch were chiefly perhaps of a temporary and occasional kind, and limited like modern royal proclama |