burn against Griswold, the Supreme Court of the United States held the legal tender acts of Congress unconstitutional. Subsequently, in the Legal Tender Cases, it held them perfectly sound and constitutional. It has been said that if the court had power absolutely to annul an act for unconstitutionality, the first decision destroyed the legal tender acts, and they could not be revived by the second decision of the court without its indulging in the most bare-faced judicial legislation.3

It is an indisputable fact that, notwithstanding the separation of powers, the principles and distinctions established by the decision of single cases become a part of the law of the land. Until overriden by express statutes, judicial precedents become a system of rules binding all, and are regarded by the community as the law determining the nature of the obligations contracted under them."

In the absence of statutory provisions or of general rules of court, many rules of practice are developed by judicial legislation. Every court of record has an inherent power to make rules for the transaction of its business. Without this power it would be impossible for courts of justice to dispose of the public business. Delays would be interminable. Every court must therefore have stated rules to go by, and they are the most proper judges of their rules of practice."

It not unfrequently happens that a law authorizes or requires judges to meet and in convention to establish rules of prac2 12 Wall. 457.

18 Wall. 603.

3 See Am. Law Rev., March, 1887.

* Sedgwick's Construction of Statutory and Constitutional Law, chap, vii, p. 250; Ordronaux's Constitutional Legislation, p. 408.

5 Fisher vs. Gould, 81 N. Y. 228.

• Barry vs. Randolph, 3 Binn. 277. See N. Y. Code of Civil Procedure, sec. 7; Baldwin vs. Mayor, 42 Barb. 549, aff'd in 45 Barb. 359.

7 Snyder vs. Bauchman, 8 S. & R. (Pa.) 336; Fullerton vs. Bank of U. S., 1 Pet. 604.

tice and procedure which shall be binding upon all courts of record, except courts for the trial of impeachments or superior courts. The rules established by the convention of judges' have the force and effect of statutes that cannot be properly departed from.3 A right secured by a rule so adopted is one of which a party cannot be deprived except by legislation or revision. A rule of court (in the absence of legislation) can be abolished only by the authority of the court, in the same manner as it was made. It cannot remain as a rule

of court and at the same time be considered as abolished by an order of the judge, resting only in parol.5

It is competent for the judges in convention to make rules altering the practice previously settled by the decisions of the courts. A valid rule may be abolished by the legislature in express terms annulling it, or ordaining something contrary in effect to it. A court may sometimes under special circumstances suspend its rules, or except a particular case from them, to subserve the ends of justice.

The delegated power of the judges in convention to make rules of practice resembles in every respect legislation. Such a rule of practice differs from a statute only in that it is not enacted by the legislature, but by the court. It is somewhat analogous to the delegated ordinance power of the executive. This power must be considered as essential to the existence

1 N. Y. Code of Civ. Pro., secs. 17, 193, 323; L. 1882, chap. 410, sec. 1558; N. Y. Law Journal, Nov. 24, 1894.

2 The legislatures may establish such rules and regulations, or delegate the power of establishing them to the courts. See Wayman vs. Southard, 10 Wheat. I.

3 People vs. Nichols, 18 Hun, 530, 535; reversed in 79 N. Y. 582, but only on another point; Matter of Moore, 108 N. Y. 280; Pratt vs. Pratt, 32 N. E. 747.

People vs. Nichols, 18 Hun, 530. See Kelly vs. Sheehan, 76 N. Y. 325.

5 Burlington R. R. Co. vs. Marchand, 5 Iowa, 468.

6 Havemeyer vs. Ingersoll, 12 Abb. Pr. (N. S.) 301.

Bishop vs. State, 30 Ala. 344.

8 U. S. vs. Breitling, 20 How. 252; Gillette Mfg. Co. vs. Ashton, 56 Neb. 576.

of the courts, as a power having always been exercised by the courts, and therefore not within the intention of the restriction of the distributing clause of the constitutions.

Since the constitutions do not authorize the legislature to delegate any law-making power proper to a convention of judges, the courts cannot make general rules inconsistent with the code enacted by the legislature. In such case the courts would be enacting a law. A rule in conflict with a a statute is of no effect. A rule intended to operate retrospectively as an act of limitations, is void. Statutes of limitation can be modified only by the legislature.3

1 Winton vs. English, 14 Abb. Pr. (N. S.) 124, 125; Gormerly vs. McGlynn, 84 N. Y. 284; French vs. Powers, 80 N. Y. 146; Rice vs. Ehele, 55 N. Y. 518; Glenney vs. Stedwell, 64 N. Y. 120.

2 People vs. Bruff, 9 Abb. (N. C.) 153.

3 Reist vs. Heilbrenner, 11 S. & R. (Pa.) 131.

PART IV

THE LEGISLATURE AND THE EXECUTIVE

CHAPTER XVI

THE PARDONING POWER

As to what powers should be included in the term executive as that term is used in the distributing clause of the constitutions, the opinions of judges are in conflict; but all agree that whatever power or duty is expressly imposed upon the executive department becomes executive in the sense that it is altogether free from the interference of the other branches of the government. Especially is this the case where the subject is committed to the discretion of the chief executive officer, either by the constitution or by statute. As long as a power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise.1 This principle is readily applied to the cases in which the constitutions vest certain powers in the executive officers. Its application to such cases is well established and illustrated by

1 Att'y Gen'l vs. Brown, I Wis. 442. Groom vs. Gwinn, 43 Md. 572, holds that, although the governor is vested by the constitution with jurisdiction to decide cases of contested elections for attorney general, the power thus conferred is not selfexecuting, and that it cannot be exercised by the governor until he is clothed by law with authority and means to execute it, as with authority to summon witnesses, to compel their attendance, to punish their refusal to attend, and to administer oaths. Where the governor is made the commander in chief of the military forces of the commonwealth, it is generally admitted that his authority must be exercised under such rules as the legislature may prescribe.

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decisions relative to the pardoning power, and to the power of remitting fines and forfeitures.

When the power to remit fines and forfeitures is confided by the constitution to the governor alone, any act of the legislature which attempts directly or indirectly to remit a fine, either before or after it has been paid, is unconstitutional.' The legislature cannot relieve persons from penalties incurred by the violation of certain penal statutes. It has even been held that where the constitution confers upon the governor power to remit fines and forfeitures and to grant reprieves, commutations, and pardons, the legislature cannot authorize a court, or a judge thereof, on an appeal from a judgment of conviction, to suspend the sentence of death.3

In the absence of constitutional limitations, the legislature could, without doubt, confer upon the courts authority to grant pardons or reprieves. The pardoning power is not a power which necessarily inheres in the executive; and when the constitution is silent, it does not belong to one branch of the government more than to another. That the governor is generally granted this power is the result of history. But, where the constitution grants the power to the governor, the legislature cannot confer it upon any other person or tribunal. Nor can a judge practically exercise the governor's power of pardon by suspending sentence indefinitely. Nor can the legislature limit or restrict the executive's power to pardon. A legislative enactment signed by the governor, remit

1 Haley vs. Clark, 26 Ala. 439.

3 Butler vs. State, 97 Ind. 373.

2 State vs. Sloss, 25 Mo. 291.

State vs. Nichols, 26 Ark. 74.

5 Lieber, Civil Liberty and Self-Government, vol. 2, 147.

6 Sterling vs. Drake, 29 Ohio St. 457; State vs. Nichols, 26 Ark. 74; Ogletree vs. Dozier, 59 Ga. 300.

7 People vs. Brown, 54 Mich. 15.

U. S. vs. Klein, 13 Wall. 128; Armstrong vs. U. S., Id. 154; Paryond vs. U. S., Id. 156.