624 PRIVATE LAW 



scientific work in jurisprudence, 1 nothing would probably have been 

 accomplished in any age. 



Each system has, on the whole, derived very substantial gain 

 from these periods of active legislation. It is the orthodox view to 

 see in the latest history of the Roman law a period of decline; but 

 it is also true that some of the most enduring doctrines and princi- 

 ples of the civil law, the benefit of inventory, the regulation of 

 intestate distribution and of legal portions, the paternal usufruct, 

 the principles of limitation and adverse possession, have been the 

 fruits of the latest imperial legislation. In England, the reign of 

 Edward I came in the formative period of the law, but of the second 

 great legislative reign, that of Queen Victoria, it is safe to say even 

 at this time that the improvements it has brought about in the 

 common law are greater than those of any other era of English legal 

 history. 



II 



While in removing technicalities and rules that have outlived 

 their usefulness the legislative power merely remedies the defects 

 and omissions of the unwritten law, the conscious and deliberate 

 adoption of new policies is a function distinctly its own. 



The question whether a proposed new policy is wise or unwise in 

 its immediate or remote bearing upon social or economic interests is 

 usually not regarded as a question of law, but of politics or states- 

 manship. Even the equity and fairness of the proposed policy is 

 not generally understood as presenting a legal problem as long as 

 the legislature deals with interests which are conceded to be subject 

 , to its power. But as soon as the interest becomes so vital as to 

 assume the nature of a fundamental right, questions of justice 

 become questions of law, and the principles of legislation fall within 

 the province of jurisprudence. 



We touch here one of the distinctive features of American legal 

 science. In countries in which the legislative power is not subject to 

 judicial control, the principles of justice which bind legislation are 

 not argued before the courts as other questions of law, but are con- 

 clusively determined by the legislative organs of the government. 

 Under the American system of judicially enforced constitutional 

 limitations these principles have become the subject of professional 

 argument, and are determined by the courts on the basis of reason 

 and logic. It becomes, under these circumstances, a question of great 

 interest whether this new departure of American jurisprudence has 

 resulted in the discovery of new principles of private right, or has 

 given greater practical security to those previously recognized. 



1 Savigny, on the Vocation of our Age for Legislation and Jurisprudence, 1814. 



