erbial sayings through the "equity of the
tribunal." It conceives of application of law as involving nothing but
a mechanical fitting of the case with the strait-jacket of rule or
remedy. The inevitable adjustments and extendings and limitations,
which an attempt to administer justice in this way must involve, are
covered up by a fiction of interpretation in order to maintain the
general security.

Philosophical rationalizing of the attempt to avoid the overpersonal
administration of justice incident to the partial reversion to justice
without law in the stage of equity and natural law, reinforced the
assumption that judicial application of law was a mechanical process
and was but a phase of interpretation. In the eighteenth century it
was given scientific form in the theory of separation of powers. The
legislative organ made laws. The executive administered them. The
judiciary applied them to the decision of controversies. It was
admitted in Anglo-American legal thinking that courts must interpret
in order to apply. But the interpretation was taken not to be in any
wise a lawmaking and the application was taken not to involve any
administrative element and to be wholly mechanical. On the Continent
interpretation so as to make a binding rule for future cases was
deemed to belong only to the legislator. The maturity of law was not
willing to admit that judge or jurist could make anything. It was not
the least service of the analytical jurisprudence of the last century
to show that the greater part of what goes by the name of
interpretation in this way of thinking is really a lawmaking process,
a supplying of new law where no rule or no sufficient rule is at hand.
"The fact is," says Gray most truly, "that the difficulties of
so-called interpretation arise when the legislature has had no meaning
at all; when the question which is raised on the statute never
occurred to it; when what the judges have to do is, not to determine
what the legislature did mean on a point which was present to its
mind, but to guess what it would have intended on a point not present
to its mind had the point been present." The attempt to maintain the
separation of powers by constitutional prohibitions has pointed to
the same lesson from another side. Lawmaking, administration and
adjudication cannot be rigidly fenced off one from the other and
turned over each to a separate agency as its exclusive field. There is
rather a division of labor as to