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pated to arise. The latter is as essentially an exercise of the judicial 

 function as the former, the only difference being that, in the one case, 

 single controversies, in the other, classes of controversies are determined. 

 The exercise of the latter function is, therefore, neither exclusively legis- 

 laiioe nor exclntively judicial, and can be described in no other way than 

 by calling it the function of judicial legislation or legislative jurisdiction. (/) 

 Obviously such judicial legislation is to be essentially distinguished from 

 legislation that relates to the administration of the government in other 

 than judicial matters ; such, for instance, as legislation for the support 

 of the government and its defense from external and from internal aggres- 

 sion, for the administration of its finances and other property, for regu- 

 lating the election and the duties of officers, and for education, the sup- 

 port of the poor, and other such matters ; which may with propriety be 

 termed administrative legislation ; for, with regard to the latter, the gov- 

 ernment is vested with the function, and the right, within certain limits, 

 of adopting any means which it may deem most conducive to the efficient 

 administration of government, and the maxim applies, " Voluntas sttt 

 proratione;" but with regard to the former, it performs, in effect, the 

 function of a judge, and should be governed solely by the consideration 

 of what is just and equal between men. Or, in other words, the object 

 of administrative legislation extends, within appropriate limits, to the 

 promotion of the welfare of the people generally ; while that o{ judicial 

 legislation extends only to the promotion of their welfare in a particular 

 way, viz , by causing justice to be observed ; and in the exercise of this 

 function the maxim, " Judicis est jus dicere non dare," is equally appli- 

 cable to the legislator as to the ordinary judge. Thus, for instance, a 

 law declaring that, in each of the class of cases determined by its provis- 

 ions, an obligation shall arise to transfer property, or to render services 

 to another, is obviously a declaration of the judgment, and not merely of 

 the will, of the legislator, or, in other words, is an exercise of the judi- 

 cial function ; and, on the other hand, if there be no pretense of natural 

 obligation, corresponding to the burden thus imposed, the law would be 

 essentially unjust, and, therefore, not a legitimate exercise either of the 

 judicial or of the legislative function ; and it would also be in conflict with 

 the Constitutional provision that no man shall be deprived of life, liberty, 

 or property, except by due process of law. Hence it cannot be doubted 

 that the function of judicial legislation is essentially identical with that of 

 jurisdiction in the ordinary sense, and that, whether called upon to de- 

 termine particular controversies presented for decision, or to determine 

 classes of cases, in advance, by establishing rules for their decision, the 

 function of the State is simply that of a judge, or umpire, and that 

 justice constitutes the only admissible principle of decision. For it would 

 be a monstrous proposition to assert that it is the function of government 

 to establish, in the comparatively few cases that are presented to it for 

 decision, a set of principles different from those principles of justice by 

 which honest men, and indeed men in general, hold themselves to be 



