AND UTTERANCES OF NATIONAL ORGANS. 163 



tation is essentially a judicial function but there has been a long 

 controversy as to whether judges make law or merely apply it. The 

 familiar saying of Bishop Hoadley, " Whoever hath an absolute 

 authority to interpret any written or spoken laws, it is he who is 

 truly the law giver to all intents and purposes," points to the former 

 view.^^ The true distinction seems to depend upon the generality 

 or concrctcncss of the interpretation. Where judicial interpreta- 

 tions of the law extend to merely the case before them, judges do 

 not make law. Where their opinions furnish precedents for the 

 future they do. Thus if an interpretation of law merely renders 

 the controversy res adjudicata, it is not law-making. If, on the 

 other hand, the principle stare decisis is applied the interpretation 

 assumes a legislative character.^^ 



The same distinction exists in the decision of international 

 controversies. A decision upon the applicability of a treaty, or a 

 principle of international law to a particular case, and the deter- 

 mination of the obligation resulting therefrom, has to do with 

 the meeting of the responsibility and not with the making of the 

 treaty or the principle of law. Consequently foreign nations are 

 entitled to hold a controversy upon which decision has been made 

 under authority of the President, res adjudicata. But can they 

 regard such a decision and the interpretation of international law 

 or treaty upon which it is based as going farther than this and as 

 binding the United States when similar controversies arise in the 

 future.®^ 



" The President," says ex-President Taft, "' carries on the correspondence 

 through the State Department with all foreign countries. He is bound in 

 such correspondence to discuss the proper construction of treaties. He 

 must state our attitude upon questions constantly arising. While strictly 



81 Sermon preached before the King, 1717, Works, 15th ed., p. 12, Gray, 

 Nature and Sources of the Law, pp. 100, 120. " Statutory construction is 

 practically one of the greatest of executive powers. . . . One might say, . . . 

 Let any one make the laws of the country if I can construe them." (Taft. 

 Our Chief Magistrate, p. 78.) " I recognize that judges do and must legis- 

 late. But they can do so only interstitially : they are confined from molar 

 to molecular motions." (Holmes, J., dissent in Southern Pacific z\ Jensen, 

 244, U. S. 205, 1917.) 



82 See Gray, op. cif.. chap. IX, and especially sec. 498; Cooley, Constitu- 

 tional Limitations, 6th ed., pp. 61-68. 



83 Taft, op. cit.. p. 113, see also infra, sec. 172. 



PROG. AMER. PHIL. SOC, VOL. LX,L, Alarch 7, I922. 



