statutes are expounded by the Courts so as to form the body of Statute Law. tion The laws of England draw a clear and broad Distincdistinction between legislative and judicial func- between tions. As it is the work of the Legislature to and judiexpress the will of the nation, and to enact or tions. declare what for the future shall be the law of the country, so it rests solely with the judges to interpret what is so expressed, and to give that law its full operation. "To declare what the law is or has been is a judicial power; to declare what the law shall be is legislative" (o). It is not for the Legislature to construe the law, even if the Courts may have mistaken its intention. "The province of the Legislature is not to construe but to enact, and their opinion-not expressed in the form of law as a declaratory provision would beis not binding on Courts, whose duty is to expound the statutes they have enacted" (p). On the other hand, it is not for the judges to alter the law, even if they see cause to doubt the wisdom or justice of any particular provision. "The judges are not to make the law what they may think reasonable, but to expound it according to the common sense of its words" (q2). "I dread very much the consequences if once the Judicature begins to trespass on the province of the Legislature, and to pronounce not what the enactment is but what it ought to be. If we do, I do not know where we are to stop" (r). (0) Ogden v. Blackledge, 2 Cranch, at p. 276. (p) Russell v. Ledsam, 14 M. & W. at p. 589, per Parke, B. (r) Eastern Counties Rail. Co. v. Marriage, 9 H. L. C. at p. 40, per legislative cial func statute. What is a We have said that the will of the nation is expressed by means of statutes (s); that is, by means of written laws enacted by and with the assent of the three branches of the Legislature. The necessity for the agreement of all three branches of the Legislature has been laid down in early writings of authority, and has received fresh illustration in modern times. "There is no Act of Parliament but must have the consent of the Lords, the Commons, and the royal assent of the King," says Lord Coke in one place (t); and in another he expresses the same principle more fully: "If an Act be made by the King and the Lords spiritual and temporal, or by the King and Commons, this bindeth not, for it is no Act of Parliament; for the Parliament concerning making or enacting of laws consisteth of the King, the Lords spiritual and temporal, and the Commons; and it is no Act of Parliament unless it be made by the King, the Lords and Commons" (u). In the legislation of early times, indeed, the assent, either of the Lords Blackburn, J. A different theory prevails in the United States, See (8) "The word 'statute' has several meanings. It may mean what is popularly called an Act of Parliament, or a code such as the Statute of Westminster the First, or all the Acts passed in one session, which was the original meaning of the word." R. v. Bakewell, 7 E. & B. at p. 851, per Lord Campbell, C.J. (t) 4 Inst. 25. (u) 2 Inst. 157-8. spiritual (x), or of the Lords and Commons (y), has been presumed, either from the fact that statutes have been entered as such on the Parliament roll, or have been generally received as statutes (z). Thus, the name of a statute has been given to “a point resolved in Parliament by all the earls and barons with one voice that they would not change the laws of the realm" (a), and the effect of a statute to a charter granted by King Edward the Third, with the assent of the prelates, earls, barons, and the whole commonalty of the realm in the present Parliament summoned at Westminster (b). On the other hand, it has been held that a prayer of the Commons acceded to by the King, with the assent of the Lords temporal, and entered on the placita corona in Parliament, but not on the Parliament rolls, was not an Act of Parliament (c). The difference between an Act of Parliament and a resolution of one branch of the Legislature was shown in the case of Stockdale v. Hansard (d). The judges of the Queen's Bench refused to give effect to a resolution of the House of Commons which declared that the power of publishing such of its proceedings as it should deem necessary or conducive to the public interest was an essential incident to the constitutional functions of Parlia (x) 2 Inst. 585-7. (y) 2 Inst. 334. (≈) 2 Inst. 639; Co. Litt. 98a, b; The Prince's Case, 8 Rep. 20 b. (a) 2 Inst. 99. (b) Islington Market Bill, 3 Cl. & Fin. 513. What is authentic statutes. ment. They yielded instant and implicit obedience to a statute which contained a similar recital. Down to the year 1849 the only authentic record record of of the statutes of the realm was to be found in the Parliament roll, which was engrossed upon parchment and kept amongst the public records. If any doubt arose as to the correctness of a printed copy of an Act of Parliament, or if two printed copies differed, the Court would refer to the roll, or accept the printed copy which had been examined with it (e). As, however, the Parliament roll was engrossed without punctuation, the help it gave was not always of much value (f). In 1849 both Houses of Parliament resolved, that for the future each bill, instead of being engrossed, should be printed by the Queen's printer, and that a print on vellum, authenticated by the clerk of the Parliament or by some other proper officer of the House of Lords, should be deposited in the Record Tower (g). Legisla As it is the function of the Legislature to presumed express the national will by means of statutes, it ture is (e) R. v. Jeffries, 1 Strange, 446. In the United States more regard seems to be paid to the copies which have generally been received as correct than to the original statute. It is laid down in one case that," Where a law as published has been acknowledged by the people, and receives a harmonious interpretation for a long series of years, and the published law is subsequently recognised by legislative authority and adopted as a rule for the future, it is not competent for any one to show by reference to an ancient manuscript that such published law was not a true transcript of the original." -Pease v. Peck, 18 Howard, 595. (f) Barrow v. Wadkin, 24 Beav. at p. 330. (g) These resolutions are printed in "The Standing Orders of the House of Commons," 1849, p. 74. the law. is essential that the Legislature should know what to know is the existing state of the law whenever any statute is passed, and it is always presumed that the Legislature possesses such knowledge (h). This principle is somewhat strained when it is stated that the Legislature must be presumed to know the difference between Chancery and Bankruptcy practice (i); but if it is confined within narrower limits it affords a safe rule for our guidance. It is true that the presumption, like most others, is arbitrary, and rests not so much upon fact as upon expediency. But although in certain instances Parliament has shown a want of familiarity with existing principles of law, these cases have been treated as exceptional, and have not affected the strength of the presumption. erroneous One of the most important consequences of such Effect of a presumption is that an erroneous declaration of declaration existing law is wholly inoperative. Speaking of of law. an Act which was apparently based upon an erroneous view of the Law of Partnership, the Privy Council said: "The enactment is no doubt entitled to great weight as evidence of the law, but it is by no means conclusive; and when the existing law is shown to be different from that which the Legislature supposed it to be, the implication arising from the statute cannot operate as a negation of its existence" (k). Thus it was (h) R. v. Walford, 9 Q. B. at p. 635; Jones v. Brown, 2 Ex. at p. 332. (i) Kellock's Case, L. R. 3 Ch. at p. 781, per Selwyn, L.J. (k) Mollwo v. Court of Wards, L. R. 4 P. C. at p. 437. See, too, Earl of Shrewsbury v. Scott, 6 C. B. N. S. at p. 141, per Cockburn, |