rm no such office and that
in assuming attributes beyond the limitations of their being they, as
history has abundantly proved, not only fail in their object, but shake
the foundations of authority, and immolate themselves. Hitherto I have
confined myself to adducing historical evidence to prove that American
courts have, as a whole, been gifted with so little political sagacity
that their interference with legislation, on behalf of particular
suitors, has, in the end, been a danger rather than a protection to
those suitors, because of the animosity which it has engendered. I shall
now go further. For the sake of argument I am willing to admit that the
courts, in the exercise of the dispensing prerogative, called the
Police Power, have always acted wisely, so much so that every such
decree which they have issued may be triumphantly defended upon
economic, moral, or social grounds. Yet, assuming this to be true,
though I think I have shown it to be untrue, the assumption only
strengthens my contention, that our courts have ceased to be true
courts, and are converted into legislative chambers, thereby promising
shortly to become, if they are not already, a menace to order. I take it
to be clear that the function of a legislature is to embody the will of
the dominant social force, for the time being, in a political policy
explained by statutes, and when that policy has reached a certain stage
of development, to cause it to be digested, together with the judicial
decisions relevant to it, in a code. This process of correlation is the
highest triumph of the jurist, and it was by their easy supremacy in
this field of thought, that Roman lawyers chiefly showed their
preeminence as compared with modern lawyers. Still, while admitting this
superiority, it is probably true that the Romans owed much of their
success in codification to the greater permanence of the Roman
legislative tenure of office, and, therefore, stability of
policy,--phenomena which were both probably effects of a slower social
movement among the ancients. The Romans, therefore, had less need than
we of a permanent judiciary to counteract the disintegrating tendency of
redundant legislation; _a fortiori_, of course, they had still less to
isolate the judiciary from political onslaughts which might cause
justice to become a series of exceptions to general principles, rather
than a code of unvarying rules.

It is precisely because they are, and are intended to be