ous
possession of that power we find a respectably strong popular movement
attempting to reverse it, or, at least, to limit its field. Most of
our advocates of direct legislation by the people assume that a great
mass of law-making would result in practice; probably the contrary
is true; the referendum would destroy more than the initiative would
create. They would go back to a condition of things which, in theory
at least, existed in the England of the early Saxon times; although,
of course, in those days only the freemen, and no women, had the
law-making vote. Anyhow, it is curious that that representative
government upon which we have been priding ourselves as the one great
Anglo-Saxon political invention should be precisely the thing that we
are now urged to give up. In the _Federalist_ there is much discussion
as to whether it is possible to have so big a democracy as the United
States, and the answer made by Hamilton was; "Yes, because we shall
have representative government." But detailed discussion of the
initiative we must leave for a later chapter.

Perhaps we begin to detect the prejudice in the general mind, which is
notable in the works of a few earlier theorists, to prefer statute law
to what is known as judge-made law, on that ground alone. The writer
is not of the school that admits there is such a thing as judge-made
law, but believes the phrase to be a misnomer, at least in ninety-nine
cases out of a hundred. The whole theory of the English law is that
it exists in and by the people and is known of them before it is
announced by a judge, and although the extreme of this theory be
somewhat metaphysical, it is certainly true that a judge is a very bad
judge who does not decide a point of law apparently new or doubtful
according to the entire body of English-American precedent,
experience, rather than by his own way of looking at things. If judges
really made new law, particularly if they made it consciously, it
would be more than "aristocratic"--it would be simply tyrannical, and,
of course, be unconstitutional as well as being an interference with
the legislative branch of government. But it is doubtless this theory,
that it is the statute law that is the democratic kind, which has
given form and body to the vast mass of statutes we are here to
consider. Certain of our legislators seem to be horrified when a court
applies a precedent a hundred years old, still more when it is a
thousand years old, alth